Delhi District Court
Mrs. Shashi Arora vs Smt. Satwant Kaur on 19 November, 2014
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADJ03 (NorthWest) Rohini Courts DELHI
Suit No. 328/14
1.Mrs. Shashi Arora W/o Mr. Inder Arora
2. Mr. Inder Arora S/o Late Sh. Jai Kishan Dass Both residents of B2/15, First Floor, Rana Pratap Bagh, Delhi110007 .....Plaintiffs Versus Smt. Satwant Kaur W/o Sardar Harcharan Singh Sarna, B2/15, Ground floor, Delhi110007 ...Defendant Date of Institution of the Suit : 21.02.2012 Date on which order was reserved : 16.10.2014 Date of decision : 19.11.2014 J U D G M E NT Suit No. 328/14 Shashi Arora Vs. Satwant kaur 1/37 2
1. Vide this judgment I shall dispose off the suit for possession, recovery of arrears of rents and mesne profits/damages
2. Brief facts are it is stated that plaintiff no. 1 is the owner and landlady of the entire ground floor of property bearing no. B2/15, Rana Pratap Bagh, Delhi having purchased the same from its previous owner Sh. Anuj Khanna vide sale deed dated 26.10.2010 duly registered with the office of Sub Registrar. It is stated that earlier Smt. Gulshan Bhatia was the owner of the above entire ground floor in terms of registered will dated 21.06.00 executed by her father Sh. Jai Kishan Dass Arora, father in law and father of plaintiff no. 1 and plaintiff no. 2 respectively. Smt. Gulshan Bhatia sold the said property to Sh. Anuj vide sale deed dated 05.02.2010 from whom the plaintiff no. 1 had purchased the suit property as stated above and as such the plaintiff no. 1 is the absolute owner of the entire ground floor of property no. B2/15, Rana Pratap Nagar, Delhi(hereinafter referred to as a suit property).
3. It is further stated that defendant alongwith her husband in Suit No. 328/14 Shashi Arora Vs. Satwant kaur 2/37 3 August 2009 alongwith one property dealer of the property Sh. Amarjeet Singh approached the plaintiff no. 2 for taking on rent the back portion of the ground floor of the above said property. The plaintiff no. 2 under the instructions and authority of her sister Smt. Gulshan Bhatia by virtue of Will dated 21.06.2000 of his father let out the back portion of the ground floor, part of the property bearing no. B2/15, Rana Pratap Nagar, Delhi consisting of 3 bedrooms, 3 bathrooms, one kitchen, one drawingdining room, pooja room, one mezzanine(store), as shown in the site plan to the defendant at a monthly rent of Rs. 20,000/ for a fixed period of 11 months commencing from 01.09.2009 to 31.07.2010 vide rent agreement dated 01.09.2009. In terms of clause 10 of the said rent agreement, defendant had deposited a sum of Rs. 1,00,000/ as security.
4. It is stated that as per terms and conditions of the above rent agreement, the defendant had regularly tendered the monthly rent of Rs. 20,000/ per month till May 2010 to the plaintiff no. 2 and since June 2010 the defendant had stopped paying the Suit No. 328/14 Shashi Arora Vs. Satwant kaur 3/37 4 rent.
5. It is further stated that after purchase of tenanted premises by plaintiff no. 1 in October 2010, the defendant was orally asked by the plaintiffs to vacate the tenanted premises and also to pay the arrears of rent from June 2010 onwards, but they did not heed the request of the plaintiff no. 1. It is further stated that after expiry of the agreed tenancy period of July 2010 vide rent agreement dated 01.09.2009, the defendant sought extension of time, but the plaintiffs did not accede to the request of the defendant to extend the time, however with the intervention of the above property dealer Sh. Amarjeet Singh the plaintiffs agreed to extend the period of tenancy by executing a fresh rent agreement.
6. Accordingly, in the last week of October 2010, in the morning hours, husband of the defendant Sardar Harcharan Singh Sarna alongwith Sh. Amarjeet Singh visited the office of plaintiff no. 2 when the plaintiff no. 2 was also present with the original rent agreement dated 01.09.2009. After detailed discussions, Sardar Suit No. 328/14 Shashi Arora Vs. Satwant kaur 4/37 5 Harcharan Singh Sarna told that he will get prepared a new agreement for extension of tenure of the tenancy in the evening itself. In the meantime, the plaintiff no. 2 left his office for some urgent work and handed over the original rent agreement dated 01.09.2009 to Sh. Amarjeet Singh in the presence of Sardar Harcharan Singh Sarna for preparing a fresh agreement to be signed by the defendant. When the plaintiff no. 2 returned back in the evening, he did not find the original agreement dated 01.09.2009 in his office even after search of his whole office. Plaintiff no. 2 also immediately contacted the husband of the defendant Sardar Harcharan Singh Sarna and above named property dealer Sh. Amarjeet Singh and enquired about the whereabouts of the said agreement. However, Sardar Harcharan Singh Sarna expressed his inability to the whereabouts of said agreement left in the drawer of the office table of the plaintiff no. 2 in the presence of Sh. Harcharan Singh Sarna.
7. Despite having made all best efforts to locate the said original Suit No. 328/14 Shashi Arora Vs. Satwant kaur 5/37 6 rent agreement dated 01.09.2009, the plaintiffs could not trace the same, subsequently 56 days thereafter, the plaintiff no. 2 had made a compliant to the SHO PS Bharat Nagar on 03.11.2010 to this effect.
8. It is further stated that thereafter no fresh agreement was executed between the parties, defendant has neither vacated the tenanted premises as per the original agreement dated 01.09.2009 and has also not paid the rent in respect of the tenanted premises since June 2010 onwards. It is stated that in July 2011, the defendant through her husband filed a false petition U/s 27 of DRC Act for the deposit of rent for the month of June and July 2011 in which the defendant filed copy of forged and fabricated rent agreement dated 01.09.2009 wherein the rate of rent was forged from Rs. 20,000/ to Rs. 2000/ and the period of tenancy from 11 months to 60 months with the sole motive to grab the property of the plaintiffs unlawfully and illegally by concealing the actual original rent agreement dated 01.09.2009 entered between plaintiff no.2 and defendant. The Suit No. 328/14 Shashi Arora Vs. Satwant kaur 6/37 7 plaintiff no. 2 filed objections to the same.
9. It is further stated that from the perusal of forged and fabricated rent agreement dated 01.09.2009 produced by the defendant it is revealed that defendant and her husband dishonestly, fraudulently with ulterior malafide intentions or in active connivance, collusion and conspiracy of each other have forged and fabricated the rent agreement dated 01.09.2009 particularly page no. 2 of the original agreement, thereby forging the rate of rent as Rs. 2000/ from the actual rate of rent as Rs. 20,000/, they also forged the tenure of tenancy from the actual period of 11 months to 60 months. Even otherwise, it is stated that the alleged forged document are not registered as per Section 17 of the Registration Act, therefore it has no value in the eyes of law. It is stated that plaintiffs have filed a compliant with PS Bharat Nagar against her husband which is pending.
10.It is further stated that suit premises consists of three bedrooms(having sizes of 9'7.5"x12'0"x15'0"; 11'6x15'0"), two bathrooms(sizes 5'6"x9'6"; 11'6"x15'0), two Suit No. 328/14 Shashi Arora Vs. Satwant kaur 7/37 8 bathrooms(sizes 5'6"x9'6", 6'8'x4'0"), one kitchen(8'0" x 11'0"), one drawing/dinning room(15'1.5" x 15'9"), one store(6'x4"x6'3"), Open space(8'6" x 10'3"), toilet(8'0"x 9'6"), total area 1513.75 sq. ft i.e 168.19 sq. yds, alongwith all fittings and fixtures including 7 fans, 1 chandelier, 4 fancy lights, 1 water motor, 9 tube lights, 3 exhaust fans etc. It is situated in prime location having all amenities of the life and is a posh colony of the capital. Therefore the prevalent market rent in the year 2009 was more than Rs. 20,000/ per month. It is stated that since the defendant has failed to deliver possession or pay the arrears of rent she was served with a legal notice dated 12.11.11, whereby they were asked to vacate the suit property, but they have failed to do so. Hence plaintiffs have been forced to file the present suit for recovery of possession of the suit property as shown in the site plan alongwith decree of arrears of rent of Rs. 4,00,000/ for the period June 2010 to January 2012 @ Rs. 20,000/ per month. Further a decree of mesne profits and damages @ Rs. 40,000/ from 01.02.2012 till vacation of Suit No. 328/14 Shashi Arora Vs. Satwant kaur 8/37 9 the premises by the defendant and cost.
11.Written Statement has been filed by the defendant in which number of preliminary objections have been taken including that the suit of the plaintiffs is without any cause of action and plaintiffs have no right, title or interest in the said tenanted premises and there is no privity of contract between the parties. It is also stated that plaintiffs are not the owner of the suit property and plaintiff had purchased this property in October 2010 and same was sold in December 2010 to one Mr. Bharat Sehgal whose documents were also registered with the office of Sub Registrar.
12.On merits, it is not denied that plaintiff no. 2 Sh. Inder Arora is the attorney of front portion of the suit property and executed a rent agreement dated 01.09.2009 for 11 months but the rate of rent was Rs. 2000/ per month with advance security of Rs. 1 lakh and it is stated that Sh. Anuj Khanna had purchased the ground floor on 06.02.2010 executed by Sh. Gulshan Bhatia. In this regard, Anuj Khanna also sent a notice to the defendant Suit No. 328/14 Shashi Arora Vs. Satwant kaur 9/37 10 giving intimation and demanding rent w.e.f May 2010 @ Rs. 2000/ per month.
13.It is also denied that defendant had regularly tendered rent @ Rs. 20,000/ per month till May, 2010. It is stated that as per the rent agreement executed by the plaintiff no. 2 and the defendant, defendant was paying rent @ Rs. 2000/ per month and it is denied that defendant ever stopped payment of rent.
14.It is also admitted that defendant deposited rent U/s 27 of DRC Act as per the rent agreement. The service of the legal notice dated 12.12.11 has not been specifically denied.
15.Replication has been filed by the plaintiffs to the aforesaid written statement of defendant, in which the allegations made in the written statements have been denied and those made in the plaint have been reaffirmed as correct. It is stated that plaintiff no. 1 is the true and absolute owner of the aforesaid property including the tenanted premises and she had entered into collaboration agreement with Sh. Bharat Sehgal and Sh. Chander Chopra in order to develop erection and completion of Suit No. 328/14 Shashi Arora Vs. Satwant kaur 10/37 11 building which is ground floor, first floor and second floor and third floor after demolishing the existing structure of the property and the said collaboration is still subsisting, however the construction could not be carried due to present litigation as plaintiff no. 1 has failed to provide vacant tenanted premises as such question regarding ownership of the said property raised by the defendants is absolutely unwarranted and not sustainable in the eyes of law. It is absolutely denied that plaintiff no. 1 has sold his property to Sh. Bharat Sehgal. Hence it is stated that suit of the plaintiff is liable to be decreed.
16.Vide order dated 06.10.12, from pleadings of the parties following issues were framed: Issues
1. Whether there is no privity of contract between the parties ? OPD
2. Whether the suit property was purchased by the plaintiff in October 2010 and it was sold in December 2010 to Mr. Bharat Sehgal as alleged in Pare5 of the Preliminary objection of Suit No. 328/14 Shashi Arora Vs. Satwant kaur 11/37 12 the WS ? If so, its effect ? OPD
3. Whether the plaintiff is entitled to arrears of rent as prayed ? OPP
4. To what amount, the plaintiff is entitled to mense profits ? If so, for which period ? OPP
5. Relief
17.Plaintiffs in support of their case have examined plaintiff no. 1 as PW1 and plaintiff no. 2 as PW2, PW3 is Sh. Amarjeet Singh property dealer. In rebuttal only husband of the defendant Sh. Harcharan Singh has appeared in the witness box. No other witness has been examined by the defendant. Plaintiff no. 2 also for plaintiff no. 1 had made the following statement on 06.10.2010 as under:
"I am the plaintiff no.2 in the present case. The defendant Satwant Kaur handed over the possession of the suit property to Sh.
Bharat Sehgal and Chander Chopra, with whom I entered into collaboration agreement in the month of August when I Suit No. 328/14 Shashi Arora Vs. Satwant kaur 12/37 13 was in Rohtak. As such, my prayer with regard to possession against the defendant satisfied. However, my suit with regard to recovery of arrear of rent and mesne profit and damages will remain stands as it is .
18.In view of the said statement only relief of arrears of rent and mesne profits remains to be adjudicated.
19.I have heard Ld. Counsel for the plaintiff Sh. Mukesh Kumar and I have also perused the written submissions filed by the defendant. Counsel for plaintiffs has relied upon the judgment 208(2014) DLT 589 in case titled as Jiwan Industries(P) Ltd., Vs. Kamlesh Rani Budhiraja.
20.My issue wise findings are as under ISSUES No. 1 & 2
21.These issues are taken up together as they are interconnected with each other.
22.PW1 has categorically stated on oath that she had purchased Suit No. 328/14 Shashi Arora Vs. Satwant kaur 13/37 14 the suit property from one Sh. Anuj khanna vide sale deed dated 26.10.2010 registered on 03.11.2010, copy of the said sale deed is ExPW1/1. Similarly PW2 who is plaintiff no. 2 has stated that the rent agreement was executed between the parties i.e plaintiff no. 2 and the defendant. Plaintiff no. 2 had executed the rent agreement on the instructions and authority of his sister Gulshan Bhatia and by virtue of his right had let out the suit property on 21.06.2000. Defendant in his written statement admits that the rent agreement was executed between plaintiff no. 2 and the defendant, but it is the stand of the defendant that the said rent agreement dated 01.09.2009 was entered for the period of 11 months, but the rate of rent was Rs. 2000/ per month with advance security of Rs. 1 lakh, whereas as per the case of plaintiff no. 2 the rent was agreed to be Rs. 20,000/ per month and the security of Rs. 1 lakh was also taken and the date of rent agreement is the same i.e 01.09.2009.
23.The relationship of landlord and tenant between plaintiff no. 2 Suit No. 328/14 Shashi Arora Vs. Satwant kaur 14/37 15 and that of defendant has been admitted as the per pleadings.
It is the case of the defendant that there was no privity of contract between plaintiff no. 1 and the defendant, as no agreement was executed between them. Since plaintiff no. 1 has proved the sale deed dated 26.10.10 executed by one Sh. Anuj Khanna in his favour ExPW1/1, therefore she being the owner would be the landlord, since it is settled law that owner is always the landlord and not vice versa, as the landlord can be any other person including the rent collector who had let out the suit property on his behalf but the owner is always the landlord, therefore both plaintiff no. 1 and 2 can be said to be landlord in the suit property visavis the defendant. Consequently there is a privity of contract between the parties.
24.Regarding the fact, whether suit property was purchased by the plaintiffs in October 2010, As discussed above PW1 has proved the sale deed ExPW1/1 by virtue of which she purchased the suit property from one Sh.Anuj Khanna on 26.10.2010, the authenticity of the said sale deed has not been Suit No. 328/14 Shashi Arora Vs. Satwant kaur 15/37 16 questioned in the cross examination of PW1. In view of the said sale deed it has been proved by plaintiff no. 1 that she had purchased the suit property from one Sh. Anuj Khanna in October 2010.
25.Regarding the contention of the defendant that the suit property was sold in October 2010 to Bharat Sehgal. Plaintiffs in their replication have categorically denied it is so, they have stated that the suit property was never sold by them to any person including person Bharat Sachdeva rather they had entered into collaboration agreement on 28.10.2010 with Sh. Bharat Sehgal and Sh. Chander Chopra in order to develop erection and completion of building which is ground floor, first floor and second floor and third floor after demolishing the existing structure of the property and the said collaboration is still subsisting, however the construction could not be carried due to present litigation, as defendant failed to vacate the premises. It is denied that plaintiff no.1 has sold the property to Sh. Bharat Sehgal. In this regard, plaintiff no.1 in her cross examination Suit No. 328/14 Shashi Arora Vs. Satwant kaur 16/37 17 was asked that she had sold the suit property to Bharat Sehgal in December 2010 which suggestion she denied.
26.On the other hand, husband of the defendant who has appeared as DW1 has exhibited one document i.e one sale deed allegedly executed by plaintiff no.1 in favour of Sh. Bharat Sehgal which is ExDW1/2 dated 02.12.10 with respect to the suit property. The plaintiffs have vehemently denied in the pleadings that they had ever sold the suit property in favour of Sh. Bharat Sehgal, it is their plea that only a collaboration agreement was executed between the parties in November 2010. It is settled law that mere exhibition of the said document by the defendant does not amount to the proof of the same. Since ExDW1/2 was not produced on the record from the rightful possession of the person in whose presence it should have come during natural course of events. DW1 has failed to explain how he got possession of the alleged sale deed Ex PW1/2 from Sh. Bharat Sehgal. The only explanation given by him in his cross examination is that he does not remember the Suit No. 328/14 Shashi Arora Vs. Satwant kaur 17/37 18 exact date when he had met Sh. Bharat Sehgal. Sh. Bharat Sehgal had shown him the ownership document of the suit property and had also given to him the photocopy of the sale deed. However,for the reasons best known to the defendant, the said Bharat Sehgal was not produced in the witness box to prove the said document ExDW1/2 showing that the suit property was indeed sold by plaintiff no.1 to him as alleged by the defendant, neither the witness from the Sub Registrar office has been produced to show that the said document was duly registered and was executed before the Sub Registrar concerned as relied and alleged by the defendant.
27.In the absence of the same since defendant was not the person who should have been in the rightful possession of the said sale deed without summoning the person himself i.e Sh. Bharat Sehgal who should have come in the witness box and stated that he had handed over the sale deed to the defendant or her husband for filing in the court.
28.In any case, Sh. Bharat Sehgal should have come in the Suit No. 328/14 Shashi Arora Vs. Satwant kaur 18/37 19 witness box to depose that the said sale deed was executed by plaintiff no. 1 in his favour for due consideration and the same was duly registered with the Sub Registrar. In any case, the witness from the Sub Registrar office should have been called to prove the authenticity of the said document. No such steps were taken. In the absence of the same the said documents does not inspire any confidence.
29.More so PW1 in her testimonial deposition on oath has categorically denied that she had sold the suit property to Sh. Bharat Sehgal in December 2010. The deposition of witness who has stated on oath during her testimonial deposition fully knowing the consequences of making falsehood in her testimonial deposition and being open to perjury and other consequences is to be preferred against the testimony of the person who has simply produced a document that too a photocopy without producing the author of the same and without explanation how and under what circumstances he came into possession of the said document, neither witness from the office Suit No. 328/14 Shashi Arora Vs. Satwant kaur 19/37 20 of Sub Registrar has been produced who could show that the said document was indeed registered there as alleged by the defendant. In these circumstances, the said document does not inspire any confidence and therefore defendant has failed to prove that the suit property was sold in December 2010 by plaintiff no.1 to Sh. Bharat Sehgal, as alleged in the written statement by defendant no. 1. Both these issues are accordingly decided in favour of the plaintiffs and against the defendant.
ISSUES No. 3 & 4
30.These issues are taken up together, as they are interconnected with each other
31.Regarding rate of rent it has been contended by the plaintiffs that the rate of rent was Rs. 20,000/ per month and the tenancy was for 11 months vide rent agreement dated 01.09.2009. It has also been contended in the pleadings that after expiry of the original rent agreement in the month of July 2010 the defendant sought extension of time thereafter with the intervention of Suit No. 328/14 Shashi Arora Vs. Satwant kaur 20/37 21 property dealer Sh. Amarjeet Singh plaintiffs agreed to extend the period of tenancy by executing a fresh rent agreement in the last week of October 2010 and in the morning hours, husband of the defendant Harcharan Singh Sarna alongwith Sh. Amarjeet Singh visited the office of plaintiff no. 2 where the plaintiff no. 2 was also present with the original rent agreement dated 01.09.2009.
32.After detailed discussions,Harcharan Singh Sarna told that he will get prepared a new agreement for extension of tenure of the tenancy in the evening itself In the meanwhile, the plaintiff no. 2 left his office for some urgent work and handed over the original rent agreement dated 01.09.2009 to Sh. Amarjeet Singh in the presence of Harcharan Singh. When the plaintiff no. 2 returned back in the evening, he did not find the original rent agreement dated 01.09.2009. Plaintiff no. 2 immediately contacted the husband of the defendant Harcharan Singh and property dealer Sh. Amarjeet Singh and enquired about the the said agreement. Sh. Sardar Harcharan Singh told him that he had left the rent Suit No. 328/14 Shashi Arora Vs. Satwant kaur 21/37 22 agreement in the drawer of the office table of the plaintiff no. 2 and thereafter he left the office in the presence of Sh. Harcharan Singh. It is stated that despite efforts plaintiff no. 2 did not locate the said rent agreement dated 01.09.2009, for which the plaintiff no. 2 had made a police compliant. The said facts have been reiterated in the affidavits of both PW1 and PW2. No suggestion has been given in the cross examination of either PW1 and PW2, in this regard neither any of them have been cross examined on the said aspect. Therefore it appears that the story being propounded by the plaintiffs in their plaint and reiterated in their rejoinder as well as in their affidavit appears to be correct.
33.In any case, defendant has relied upon one rent agreement mark A or mark B in his testimonial deposition as per which the rent of the suit premises situated at prime area of Rana Pratap Bagh, Delhi consisting of 3 bedrooms, 3 bathrooms, one kitchen, one drawingdining room, pooja room, one mezzanine(store) was let out only Rs. 2000/ per month and Suit No. 328/14 Shashi Arora Vs. Satwant kaur 22/37 23 that too for a period of 60 months. The said rent agreement is not registered as per Section 17(1)(d) of the Indian Registration Act. The said document was compulsarily required to be registered, consequently by virtue of Section 49 of the Registration Act, since the said document has not been registered, it shall not effect any property comprised therein, further as per judgment 208(2014) DLT 589, relied upon by the plaintiffs it has been held as under:
"9. It is settled law that an unregistered lease deed can be looked into only for collateral purpose and collateral purpose cannot be interpreted to include therein the terms and conditions by which parties are related to each other as landlord and tenant. Collateral purpose basically is to show the nature of possession i.e tenant has not illegally entered into possession but has legally entered into possession. All Suit No. 328/14 Shashi Arora Vs. Satwant kaur 23/37 24 other terms and conditions between the landlord and tenant as stated in the registered lease deed whether it be for the period of lease, or the rate of rent or area of tenancy or other terms and conditions, the same cannot be looked into in view of the specific bar of Section 49 of the Registration Act. The Appellate court was, therefore, wholly unjustified in looking at the terms of lease/rent note."
34.In view of above judgment the said document can only be looked into for collateral purpose(s). The collateral purpose has been defined as not the terms of the lease deed, but only to show the nature of possession. In this case, in any case it is not disputed by the plaintiffs that defendant had entered into the suit property legally.
35.The said lease deed relied upon by the plaintiffs appears to be forged and fabricated. Firstly for the reasons that in the written Suit No. 328/14 Shashi Arora Vs. Satwant kaur 24/37 25 statement itself it has been contented by the defendant that the said lease deed was for a period of 11 months, therefore it is not clear how the lease deed containing the term of 60 months came into being when the defendant was let out the premises for a period of 11 months only. Infact DW1 husband of the defendant has admitted in his cross examination that it was correct that he had taken the premises on rent for 11 months, therefore it is not clear why would any prudent landlord insert clause of tenancy for 60 months, when he had let out the tenanted premises for 11 months only.
36.Further it is often said that man may lie, but the circumstances never do, in preparing the said forged and fabricated documents defendant appears to have forgotten the fact that on the last page he has mentioned one Sh. Amarjeet Singh S/o Sh. B.S.Sehgal as a witness, but at the same time in his cross examination he denied the suggestion that Sh Amarjeet Singh was a mediator of same as a property dealer. Though as per forged and fabricated rent agreement mark A(also marked as Suit No. 328/14 Shashi Arora Vs. Satwant kaur 25/37 26 mark B) the said name of Amarjeet Singh appears in the name of witnesses to the said agreement. Further there is a contradiction in this regard by DW1 in his cross examination, on the one hand he states that Sh. Amarjeet Singh was not the mediator, on the other hand in his further cross examination he states that notarization of the rent agreement had taken place in Tis Hazari Court in presence of Inder Arora, Amarjeet Singh, his wife and himself.
37.Further said Amarjeet Singh has also appeared in witness box as PW3, he has categorically stated in his affidavit that he was instrumental in getting the suit property let out to the defendant from the plaintiffs and in this regard lease deed was executed between the parties dated 01.09.2009 and both the parties had signed in his presence. The rate of rent was Rs. 20,000/ per month and Rs. 1 lakh as security. He has also corroborated the story of the plaintiffs regarding the meeting of husband of the defendant and plaintiff no. 2 and him in October 2010 for renewal of the lease deed and thereafter leaving of the plaintiff Suit No. 328/14 Shashi Arora Vs. Satwant kaur 26/37 27 no. 2 from the office and thereafter disappearance of the said original rent agreement, nothing has come out in his cross examination, no suggestion has been given that the rent of the premises was not Rs. 20,000/.
38.As discussed above the forged and fabricated rent agreement relied upon by the defendant also shows said Amarjeet Singh as a witness, therefore testimonies of PW1 and PW2 are corroborated by Sh. Amarjeet Singh, who has also corroborated the story of the plaintiffs regarding disappearance of the original lease deed from the office of plaintiff no.2 in October 2002, the rent of the premises as discussed above consisting of 3 bedrooms, 3 bathrooms, one kitchen, one drawingdining room, pooja room, one mezzanine(store) situated in a very good locality of Rana Pratap Bagh, Central Delhi cannot be imagined to be Rs. 2000/ per month as propounded by the defendant in the year 2009. It is apparent from the aforesaid discussion that the defendant has placed on record one forged and fabricated rent agreement in which the rent of the premises has been Suit No. 328/14 Shashi Arora Vs. Satwant kaur 27/37 28 forged to be Rs. 2000/ per month instead of Rs. 20,000 per month which no prudent person would accept to be true. From the testimonies of PW1 and PW2 and their testimonies being corroborated by PW3 Sh. Amarjeet Singh it is apparent that rent of the premises was settled to be Rs. 20000/ per month and defendant has placed on record forged and fabricated rent agreement mark A(also marked as mark B) in order to somehow wriggle out from the present case.
39.Regarding the arrears of rent, the plaintiffs have categorically stated that defendant paid rent till May 2010 and since June 2010 defendant has stopped paying the rent. The case of the defendant is that as per rent agreement the defendant was paying rent @ Rs. 2000/ per month and it is denied that the defendant ever stopped paying the rent and it is stated that in any case plaintiff no.1 has sold the suit property to Sh. Bharat Sehgal on December 2010 vide registered sale deed therefore she is not entitled to any arrears of rent. In the affidavit DW1 has stated that he had paid rent @ Rs. 2000/ till 31.07.11 and Suit No. 328/14 Shashi Arora Vs. Satwant kaur 28/37 29 in the month of August 2011 plaintiff no. 2 refused to accept the rent and thereafter defendant deposited the rent in the court of ARC Rohini. Thereafter he came to know that plaintiffs are not the owner of the suit property and they have sold the same to one Bharat Sehgal and thereafter he paid the rent to Sh. Bharat Sehgal from October 2011 till August 2012, thereafter he surrendered the tenancy to Sh. Bharat Sehgal.
40. As discussed above, the defendant has failed to prove that plaintiff no. 1 has sold the suit property to Sh. Bharat Sehgal in view of discussion on issue(s) no. 1 & 2. Therefore defendant was bound to pay the admitted rent to the plaintiffs no. 1 & 2. In any case, it is stated by DW1 in his cross examination that he had paid rent till May 2011, but no rent receipts were issued by the plaintiffs. If the said assertion of DW1 as stated in cross examination was correct that the plaintiffs were not issuing the rent receipt for the payment of rent received till May 2011 then what stopped the defendant from tendering the said rent by way of money order or by way of cheque or by filing an appropriate Suit No. 328/14 Shashi Arora Vs. Satwant kaur 29/37 30 petition under DRC Act for issuance of rent receipts, as his case is that the rent of the premises was Rs. 2000/ per month, therefore this plea of the defendant that having paid the rent in cash to the plaintiffs without insistence upon rent receipt and on alleged refusal not making effort to tender the rent by way of money order appears to be palpably false. It appears that defendant had never paid the rent in cash to the plaintiffs. This plea of the defendant is not plausible. In any case, deposit of rent by the defendant for the period January 2011 always is not a proper tender, as the said rent was deposited @ Rs. 2000/ per month, as discussed above. The rent of the premises is found to be Rs. 20,000/, therefore tender is not proper as per law and does not give a valid discharge to the defendant. In these circumstances, plaintiffs are held entitled to a decree of arrears of rent of Rs. 4,00,000/ @ 20,000/ per month from the period June 2010 to October 2012 alongwith interest @ 12% per annum on the said amount till its realization.
41.Regarding mesne profits the plaintiffs have claimed mesne Suit No. 328/14 Shashi Arora Vs. Satwant kaur 30/37 31 profits in their plaint and affidavit w.e.f 01.02.11 till vacation of the suit property which as per the statement of plaintiff on record took place in August 2012 i.e only for the period of 7 months. The plaintiffs have produced the sale deed on the record with respect to similar situated suit premises in the area, one sale deed depicts the rent @ Rs. 20,000/ which is Mark B and one showing the rent @ Rs. 17,000/ per month and third one is showing the rent @ Rs. 16000/ which does not strengthen the case in any way. In any case none of the originals have been proved as per law. Therefore same are even otherwise not admissible in law.
42.What should be the mesne profits in the present case, the guidelines have been laid down by the Hon'ble High Court in RFA(s) No. 458/11 and 457/11, In re: M/s M.C.Aggarwal HUF Vs. M/s Sahara India & Ors and M/s Sahara India & Ors Vs. M/s M.C.Aggarwal HUF, decided on 02.09.11 in which it was held as under:
What is now therefore to be determined is Suit No. 328/14 Shashi Arora Vs. Satwant kaur 31/37 32 that what should be the mesne profits which should be awarded to the landlord in the absence of any evidence having been led by the landlord with respect to the rents prevalent in the area. Though it has not been argued on behalf of the landlord, I would like to give benefit to landlord of various precedents of this Court and the Supreme Court which take judicial notice of increase of rent in the urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. In my opinion, considering that the premises are situated in one of the most centrally located commercial localities of Delhi, situated in Cannaught Place, an increase of 15% every year should be awarded(and nothing has otherwise been shown to me Suit No. 328/14 Shashi Arora Vs. Satwant kaur 32/37 33 for the increase to be lesser) during the period for which the tenants have overstayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 03.04.2005. I rely upon and refer to a Division Bench Judgment of this court in the case of S.Kumar Vs. G.R.Kathpalia 1999 RLR 114 and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase of rent, and has Suit No. 328/14 Shashi Arora Vs. Satwant kaur 33/37 34 accordingly allowed mesne profits at a rate higher than the contractual rate of rent.
43.In view of the aforesaid judgment of Hon'ble High Court, wherein it has been held that judicial notice can be taken of the increase of rent in the urban areas by applying the provisions of Section 114 and 57 of the Evidence Act, 1972.
44.Considering the facts that the suit property is situated at Rana Pratap Bagh, which is not so strategically located as was in that case where the suit property was situated at Connaught Place, therefore the plaintiffs would be definitely entitled to an increase of 10% every year during the period for which the defendant remained in illegal occupation of the premises of the plaintiffs and taking into account the law laid down in the aforesaid judgment the said rate of 10% increase every year would be just and expedient in the facts and circumstances of the present case, therefore plaintiffs are entitled to mesne profits from 01.02.12 till August 2012 @ Rs. 20,000/ per month plus 10% compounded increase on the said amount of Rs. 20,000/ Suit No. 328/14 Shashi Arora Vs. Satwant kaur 34/37 35 alongwith interest @ 12% per annum on the said amount till its realization is passed in favour of the plaintiffs and against the defendant.
45.Plaintiffs are further directed to pay deficit court fee(s) on the mesne profits and interest so determined above from the date of filing of the suit till the date of decree. Decree sheet be drawn only after the payment of deficient court fee(s) by the plaintiffs, as directed above.
46.As discussed above, defendant has tried to mislead the court by adopting dishonest means in order to maintain sanctity, purity of our legal system and the faith of the people in the court system and ensure that there is a deterrence for producing false documents in the court and for giving false evidence in the court. Our judicial system should not be permitted to be used as tool to settle scores by adopting unfair means. It should be seen that genuine litigants contest their right on the front foot and people who employ unfair means tremble before initiating false prosecution or give false evidence.
Suit No. 328/14
Shashi Arora Vs. Satwant kaur 35/37 36
47.In the present case defendant has taken a false defence and has filed a forged and fabricated rent agreement Mark A or mark B and her husband has given false evidence in the court in order to wriggle out from the present case and to succeed which he has failed to do, therefore exemplary costs needs to be imposed in the present case as a deterrence, so that any other person, who is on the verge of contemplating such an idea should be nipped in the bud. Accordingly I hereby impose exemplary costs of Rs. 35000/ upon the defendant for filing a forged and fabricated rent agreement dated 01.09.2009 on the record.
(RELIEF)
47.In view of my findings on the above issues plaintiffs are held entitled to a decree of arrears of rent of Rs. 4,00,000/ @ 20,000/ per month from the period June 2010 to October 2012 alongwith interest @ 12% per annum on the said amount till its realization.
48.Further a decree of mesne profits from 01.02.12 till August 2012 Suit No. 328/14 Shashi Arora Vs. Satwant kaur 36/37 37 @ Rs. 20,000/ per month plus 10% compounded increase on the said amount of Rs. 20,000/ alongwith interest @ 12% per annum on the said amount till its realization is passed in favour of the plaintiffs and against the defendant.
49.Plaintiffs are further directed to pay deficit court fee(s) on the mesne profits and interest so determined above from the date of filing of the suit till the date of decree. Decree sheet be drawn only after the payment of deficient court fee(s) by the plaintiffs, as directed above.
50.Exemplary costs of Rs. 35000/ have been imposed upon the defendant for filing a forged and fabricated rent agreement dated 01.09.2009 on the record.
51.Plaintiffs are also held entitled to the costs of the suit. Decree be drawn.
52. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 19.11.2014 ADJ(N/W) Rohini Courts
Delhi/19.11.2014
Suit No. 328/14
Shashi Arora Vs. Satwant kaur 37/37
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Suit No. 328/14
Shashi Arora Vs. Satwant kaur 38/37
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Suit No. 328/14
Shashi Arora Vs. Satwant kaur 39/37