Delhi District Court
Ashok Kumar vs . Sunil Modi & Anr. on 26 September, 2018
Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE03: SOUTH WEST DISTRICT:
DWARKA COURTS:NEW DELHI
Regular Civil Appeal No. 147/17
CNR No. DLSW010174642017
In the matter of:
Sh. Ashok Kumar
S/o Sh. Ishwar Dass Garg
Shop No. F20,
West Sagarpur,
New Delhi110046. .....Appellant
Versus
1) Sh. Sunil Modi
S/o Late Sh. Harish Modi
R/o Plot No. F20,
West Sagarpur,
New Delhi110046.
2) Ms. Monika Modi
W/o Sh. Sunil Modi
R/o Plot No. F20,
West Sagarpur,
New Delhi110046. .....Respondents
Date of Institution of Appeal : 15.12.2017
Date on which judgment was reserved : 07.09.2018
Date on which judgment was pronounced
:
26.09.2018
APPEAL UNDER SECTION 96 READ WITH ORDER XLI CPC FOR SETTING ASIDE JUDGMENT / DECREE DATED 31.10.2017 AND FOR RECALLING ORDER DATED 07.10.2017 PASSED BY MS. NIYAY BINDU, LD. ASCJ, DWARKA COURTS NEW DELHI IN CIVIL SUIT NO. 26420/16 TITLED " SUNIL MODI & ANR. VS. Ashok Kumar "
Page 1 of 14 DOD: 26.09.2018Ashok Kumar VS. Sunil Modi & Anr.RCA No. 147/17
: JUDGMENT :
1. This is an appeal filed by Sh. Ashok Kumar (hereinafter referred as defendant) assailing judgment and decree dated 31.10.2017 and for recalling order dated 07.10.2017 dismissing his application under Section 31 CPC for summoning witnesses and the other application under Order XIV Rule 5 read with Section 151 CPC for framing additional issues.
2. Facts of the case leading to filing of appeal are briefly narrated below :
2.1 Plaintiffs Sh. Sunil Modi and Smt. Monika Modi have filed suit for ejectment / possession and recovery of arrears of rent, damages and mesne profits.
2.2 Defendant Sh. Ashok Kumar being tenant is stated to be occupying private shop No. 1 measuring 10 ft. x 16 ft. situated in property No. F20, Khasra No. 33/17, Village Dabri known as West Sagarpur, New Delhi which was let out to him upon monthly rent of Rs. 1000/ w.e.f. 07.12.1993 by the owner/ landlord Sh. Harish Chand Modi on the basis of written agreement and monthly rent was lastly tendered by defendant @ Rs. 1775/.
2.3 Sh. Harish Chand Modi having expired on 02.08.2008 is stated to have executed deed of sale agreement, GPA, Affidavit, Receipt, Possession Letter, etc. in favour of plaintiff No. 1 Sh. Sunil Modi during his lifetime who became owner / landlord after the death of his father and started collecting rent from the defendant.
2.4 It is further averred that Sh. Sunil Modi has executed General Power of Attorney in favour of his wife plaintiff No. 2 Smt. Monika Modi who thereafter started dealing with the tenants including defendant and Page 2 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17plaintiffs' suit has been jointly filed by asserting themselves as landlord / landlady.
2.5 Defendant is stated to be in arrears of rent for a sum of Rs. 49,700/ since January 2012. His tenancy on monthly basis was terminated by statutory notice dated 29.04.2014 and defendant having continued to occupy the property after expiry of 15 days is stated to be in unauthorized occupation of private shop No. 1 w.e.f. 22.05.2014. Plaintiffs, left with no alternative, have therefore filed suit for ejectment, recovery of Rs. 49,700/ as arrears of rent alongwith mesne profits by insisting that the shop could easily fetch monthly rent @ Rs. 6000/ as per prevailing market rate and defendant having continued as unauthorized occupant in the shop is liable to pay damages / mesne profits @ Rs. 200/ per day w.e.f. 23.05.2014 till the date of handing over of vacant physical possession of the shop to the plaintiffs.
3. Summons of the suit was served upon defendant who has contested plaintiffs' suit by filing written statement disputing landlordtenant relationship by assailing GPA, deed of sale agreement, etc. dated 17.06.2008 referred as Ex. PW1/3 to Ex. PW1/7 as forged and fabricated documents which did not create any title / interest in plaintiff's favour being unregistered documents. Plaintiff's suit was also opposed by defendant on the ground of nonjoinder of necessary parties and concealment of material facts and documents. Defendant, nevertheless, has averred about payment of monthly rent of shop to Smt. Rama Devi till January 2009 and plaintiff No. 2 Smt. Monika Modi thereafter started receiving rent w.e.f. February 2009 but mere receiving rent did not authorize her to institute suit for ejectment/ possession against defendant in the absence of landlord Page 3 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17tenant relationship.
3.1 Plaintiffs' averments to the extent that he was inducted as tenant upon monthly rent of Rs. 1000/ by Sh. Harish Modi was admitted by defendant who nevertheless disputed landlordtenant relationship by insisting that suit shop was let out by Sh. Harish Modi on 01.02.1993 and last monthly rent was paid @ Rs. 1955/.
4. Plaintiffs have filed their replication disputing defendant's averments and following issues were settled on 08.10.2015 by Ld. Trial Court :
1. Whether there exists a landlordtenant relationship between the plaintiffs and the defendant ? .....OPP
2. If, there exists, a landlordtenant relationship between the plaintiffs and the defendant, whether the said tenancy has been terminated by the plaintiffs ? ....OPP
3. Whether the plaintiffs are entitled to recover arrears damages / mesne profits from the defendant, if so, at what rate and for what term ? ...OPP
4. Whether the plaintiffs are entitled to interest upon damages, if any, from the defendant and if so, at what rate and for what term ? ....OPP
5. Whether the present suit is bad for nonjoinder of necessary parties ? ....OPD
6. Relief.
5. Matter was listed for plaintiffs' evidence and plaintiff No. 1 Sh. Sunil Modi has tendered his evidence by way of affidavit which is Ex.PW1/A by relying upon 'siteplan' and 'original rent deed' dated Page 4 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/1707.12.1993 proved as Ex. PW1/1 and Ex. PW1/2. Copies of GPA, Deed of Sale Agreement, Affidavit, Possession Letter and Will dated 17.06.2008 executed by Sh. Harish Modi in favour of plaintiff No. 1 Sh. Sunil Modi and copy of registered GPA dated 27.04.2009 executed by Sh. Sunil Modi in favour of his wife plaintiff No. 2 Smt. Monika were referred as Ex. PW1/3 to Ex. PW1/8 whereas copies of legal notice dated 29.04.2014, postal receipt, courier receipt and reply dated 16.05.2014 have been referred as Ex. PW1/9 to Ex. PW1/12.
6. Plaintiff (PW1) Sh. Sunil Modi was crossexamined by defendant's counsel on 29.09.2016 and plaintiff's evidence was closed on the same day.
7. Defendant Sh. Ashok Kumar, on the other hand, has deposed as DW1 whereas Sh. Arun Kumar, Smt. Rama Devi and plaintiff No. 2 Smt. Monika have been examined as DW2, DW3 and DW4 respectively.
8. Defendant, thereafter, filed application under Section 31 CPC on 16.03.2017 for summoning (i) Revenue Officer / Patwari with land record of property; (ii) Incharge Cremation Ground, Delhi Cantt with record of death / cremation of Sh. Harish Modi and (iii) for recalling plaintiff No. 2 Smt. Monika Modi alongwith another application under Section 340 Cr.PC which was directed to be registered separately. Another application under Order XIV Rule 5 CPC was subsequently filed by defendant on 22.03.2017 for framing additional issues in respect of notice of transfer of leased property / shop; execution of Will dated 20.06.2008 during the lifetime of testator / landlord and for disputing legal notice dated 29.04.2014 as invalid.
9. Submissions were heard on 21.09.2017 and both applications Page 5 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17were dismissed by Ld. Trial Court vide impugned order dated 07.10.2017.
10. Final arguments were addressed by plaintiff's counsel on 26.10.2017 and matter was adjourned to 31.10.2017 for judgment securing defendant's right to address final arguments.
11. Defendant and his counsel however failed to appear and address their submissions and judgment dated 31.10.2017 was passed by deciding all Issues in plaintiffs' favour including 'Additional Issue No. 6' "Whether the plaintiff is entitled for decree of possession in respect of suit property, as prayed ? .... OPP".
12. Peeved by the judgment and decree, defendant Sh. Ashok Kumar has filed appeal assailing judgment inter alia upon following grounds : 12.1 That judgment and decree was secretly passed by Ld. Trial Court by recording vague and contradictory observations best suited to all concerned and interested which was projected as 'contested judgment' in the official website of Dwarka Courts.
12.2 That defendant was not allowed to inspect the judicial file on 16.11.2017 when it was revealed that decree had been passed in all three suits including the present suit and the following date on 17.11.2017 and complaint against the Presiding Officer is pending before Ld. District & Sessions Judge, Dwarka Courts by referring to copy of inspection application dated 16th and 17th November filed as 'AnnexureA3'. 12.3 That application for obtaining certified copy of causelist and order dated 07.10.2017 was filed on 20.11.2017 and applications for inspecting file and obtaining certified copy of judgment and decree were thereafter filed on 22.11.2017 but certified copy of judgment and decree Page 6 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17was finally supplied to defendant on 04.12.2017. 12.4 That Ld. Trial Court has abused its power by suo moto framing additional Issue No. 6 (mentioned as Issue No. 7) "Whether the plaintiff is entitled for decree of possession in respect of suit property, as prayed ? .... OPP" whereas defendant's application under Order XIV Rule 5 CPC for framing additional issues was dismissed vide order dated 07.10.2017 which demonstrates that Presiding Officer has acted under the influence of plaintiff's counsels.
12.5 That impugned judgment and decree was passed in utmost haste without hearing defendant's arguments which was reflected as 'contested judgment' on the official website of District Courts Dwarka, Delhi.
13. Copy of 'Case Status' and 'History of Case Hearing' reflected on the official website has been annexed as Annexure A1; certified copy of judgment and decree dated 31.10.2017 is annexed as Annexure A2; copy of inspection application on 16.11.2017 and 17.11.2017 is annexed as Annexure A3; copy of application for certified copy filed on 20.11.2017 is annexed as Annexure A4; copy of inspection application dated 22.11.2017 and short orders dated 07.10.2017, 26.10.2017 and 31.10.2017 are annexed as Annexure A5; copy of application dated 22.11.2017 for obtaining certified copy of judgment and decree is annexed as Annexure A6; copy of order dated 21.09.2017 is annexed as Annexure A7; copy of order dated 21.09.2017 in Miscellaneous Application No. 63/17 is annexed as Annexure A8 and copies of order dated 07.10.2017, 26.10.2017 and 31.10.2017 are annexed as Annexure A9.
14. Advocate Ms. Savita Aggarwal for appellant and Advocate Ms. Page 7 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17Renu Gupta for respondent have addressed their submissions. Ld. counsel for appellant has relied upon following judgments in support of her contention for setting aside judgment passed by Ld. Trial Court :
a) "S. P. Chengalvaraya Naidu vs. Jagannath" 1994 AIR 853 ;
b) "Harbhajan Kaur Bhatia through her attorney Charanjit Singh Bhatia vs. M/s Aadya Trading & Investment Pvt. Ltd. & Anr." FAO No. 355/2016 ;
c) "India Infoline Ltd. vs. Santosh Kumar Saxena & Ors." FAO No. 25/2017 ;
d) "Meghmala & Ors. vs. G. Narasimha Reddy & Ors." Civil Appeal No. 66566657 of 2010;
e) "Gandabhai Ranchhodji Gandhi Vs. Noshir Ka Vasji Sabowala & Ors." AIR 1994 Guj.18(1993)1 GLR 238.
15. Further, ld. counsel for appellant during course of submissions has adverted to DD/ cheque No. 560616 for Rs. 21,945/ received by plaintiff's counsel and Advocate Ms. Renu Gupta, in response to court's query in respect of arrears of rent paid by appellant, has filed application alongwith copy of entries in the passbook of plaintiff No. 2 Smt. Monika Modi.
16. It is, therefore, significant to note that plaintiff's suit for ejectment and recovery of arrears of rent, damages and mesne profits has been contested by defendant by disputing landlordtenant relationship notwithstanding defendant's contention in his written statement and application under Order XXXIX Rule 10 CPC admitting plaintiff's case of Page 8 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17being inducted as tenant by Sh. Harish Modi in the year 1993.
17. Defendant Sh. Ashok Kumar Garg during his cross examination by plaintiff's counsel recorded on 10.11.2016 has deposed about payment of monthly rent of shop to plaintiff No. 2 Smt. Monika Modi till April 2014 and also admitted service of notice dated 29.04.2014.
18. Relevant portion of his crossexamination is reproduced for reference : "It is correct that shop no. 1 reflected in the siteplan Ex. PW1/1 is in my possession. Sunil Modi is the son of late Late Harish Modi. I had taken the suit shop on rent from Harish Modi. Monika Modi is wife of Sunil Modi. I am paying rent to Monika Modi since the year 2000. I have paid the rent by cash to Monika Modi till April, 2014. Vol. After that I received a notice from Sunil Modi, thereafter, I have deposited the rent in the account of Monika Modi as they refused to take the rent. It is wrong to suggest that Monika Modi used to pick cosmetics from my shop and did not pay for it. I have replied the notice. It is correct that I had sent the reply to the notice received which is Ex. DW1/7. It is correct that I have mentioned in the reply that I am paying rent to Monika Modi since the year 2000."
19. DW2 Sh. Arun Kumar has deposed that he is tenant occupying shop no. 5, RZF20, West Sagarpur, Delhi since 198889 and was inducted as tenant by Sh. Harish Chand Modi, father of plaintiff No. 1 Sh. Sunil Modi. He has identified his signature upon rent deed Ex. PW1/2 Page 9 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17at point X1 and also identified his signatures as attesting witness upon documents viz. GPA, Deed of Sale Agreement, Affidavit, Possession Letter and Will referred as Ex. PW1/3 to Ex. PW1/7.
20. Smt. Rama Devi, wife of Late Harish Modi, examined as DW3 has deposed against the defendant by stating that suit shop was sold by her husband in favour of her son Sh. Sunil Modi who continued collecting rent from defendant and DW4 (court witness) Smt. Monika Modi has deposed about monthly rent being collected from defendant till the date of filing of the suit.
21. Defendant's application for summoning witnesses viz. Revenue Officer / Patwari; Incharge Cremation Ground, Delhi Cantt and plaintiff No. 2 Smt. Monika Modi and the other application under Order XIV Rule 5 CPC for framing additional issues in respect of notice of transfer of leased property / shop; execution of Will dated 20.06.2008 and for disputing legal notice dated 29.04.2014 were rightly dismissed by Ld. Trial Court as defendant Sh. Ashok Kumar being tenant cannot dispute the title of LRs / son and daughterinlaw of Sh. Harish Modi by refusing to acknowledge them as his landlord after the death of erstwhile owner/ landlord Shri Harish Modi.
22. Defendant's anguish over framing of Issue No. 6 in respect of relief of possession settled at the stage of judgment is misplaced and Ld. Trial Court has rightly observed that main relief of possession was inadvertently left out. Order XIV Rule 5 (1) CPC is reproduced below for reference : "5. Power to amend and strike out issues. The Court may at any time before passing a decree Page 10 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17amend the issues or frame additional issues on such term as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed."
23. It is well settled law that three aspects are required to be adjudicated / proved for deciding a suit for ejectment / recovery of possession from tenant. Hon'ble High Court of Delhi in para no. 7 of its judgment titled "Inderjeet Singh Cheema & Anr. vs. Next World Immigration Services Associates" 2015 I AD (Delhi) 346 has held : "In the city of Delhi in order to succeed in a suit for possession against a tenant, three aspects are required to be proved / admitted: (i) existence of relationship of landlord and tenant; (ii) rent being more than Rs. 3500/ per month so as to take the tenancy out of the protection of the Delhi Rent Control Act, 1958 and (iii) serving of notice under Section 106 of The Transfer of Property Act, 1882 terminating the monthly tenancy."
24. So far as existence of landlordtenant relationship is concerned, defendant Sh. Ashok Kumar during his crossexamination has deposed that he had been continuously paying monthly rent of the shop to plaintiff No. 2 Smt. Monika Modi till April 2014. Further, it is also pertinent to record that defendant having admitted himself as tenant of Sh. Harish Modi cannot dispute the title of plaintiffs/ LRs of erstwhile owner / landlord as the issue of title is not be decided in the suit for ejectment of tenant.
Page 11 of 14 DOD: 26.09.2018Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/17Further, defendant being tenant is estopped from disputing landlordtenant relationship by refusing to accept plaintiffs as his landlord or by raising dispute over documents executed by late Harish Modi in favour of his son plaintiff No. 1 Sh. Sunil Modi.
25. The second aspect with respect to application of provisions of Delhi Rent Control Act, 1958 is not relevant in the facts and circumstances of the present case as defendant's application under Order VII Rule 11 (d) CPC seeking rejection of plaint in view of Section 3 (c) read with Section 50 of DRC Act was dismissed by Ld. Trial Court vide order dated 04.04.2015 by referring to judgments of Hon'ble Apex Court and Hon'ble High Court of Delhi in cases titled "Mitter Sen Jain v. Shakuntala Devi"
(2000) 9 SCC 720 and "Rajpal Singh v. Deen Dayal Kapil" 2014 (1) RCR 438 which order has attained finality.
26. The third requirement with respect to service of legal notice terminating tenancy is also satisfied as defendant Sh. Ashok Kumar has admitted service of legal notice dated 29.04.2014 proved as Ex. PW1/9 and referred to reply dated 16.05.2014 wherein he has mentioned about payment of monthly rent to plaintiff No. 2 Smt. Monika Modi which fact was admitted by defendant during his crossexamination recorded on 10.11.2016.
27. Para no. 10 of aforesaid judgment of Hon'ble High Court of Delhi titled "Inderjeet Singh Cheema & Anr. (supra) being relevant is reproduced below for reference : "So far as the third aspect of termination of tenancy by a legal notice is concerned,...."
"In any case, it is now the settled law so far as this Page 12 of 14 DOD: 26.09.2018 Ashok Kumar VS. Sunil Modi & Anr.RCA No. 147/17
Court is concerned that even the service of a summons of the suit can be taken as a notice under Section 106 of The Transfer of Property Act, 1882 in view of the judgment in the case of M/s Jeevan Diesels and Electrical Ltd. vs. Jasbir Singh Chadha (HUF) and Anr. (2011) 183 DLT 712..."
28. Since all three parameters (aspects) in respect of suit for ejectment/ recovery of possession from tenant have been met so plaintiff's suit for ejectment / possession of shop has been rightly decreed by Ld. Trial Court on the basis of findings upon Issues No. 1 and 2.
29. Though plaintiff has averred about monthly rent lastly paid @ Rs. 1755/ whereas defendant has stated about monthly rent @ Rs. 1955/ in para no. 2 of reply on merits and in para no. 4 of application under Order XXXIX Rule 10 CPC, nevertheless, finding of Ld. Trial Court upon Issues No. 3 and 4 decided by one common finding cannot be modified in the absence of application under Order XLI Rule 22 CPC/ cross appeal by respondents claiming arrears of mesne profits equivalent to admitted rent @ Rs. 1955/.
30. Though no evidence in respect of payment of arrears of rent was led by defendant before Ld. Trial Court, nevertheless, respondent's counsel upon been inquired about arrears of rent has filed application alongwith copy of passbook of Smt. Monika Modi verifying deposit of cheque no. 560616 for Rs. 21,945/. Aforesaid payment towards arrears of rent is therefore required to be adjusted against defendant's liability towards arrears of damages /mesne profits.
Page 13 of 14 DOD: 26.09.2018Ashok Kumar VS. Sunil Modi & Anr.
RCA No. 147/1731. Present appeal being devoid of merit is accordingly dismissed. Parties to bear their own cost. Decreesheet be prepared accordingly.
32. Trial Court Record be sent back to record room alongwith copy of this judgment.
33. Appeal file be consigned to Record Room after necessary compliance.
Digitally signedTARUN by TARUN YOGESH YOGESH Date: 2018.09.27 17:17:18 +0530 Announced in the open Court (Tarun Yogesh) On 26.09.2018 ADJ03/South West Dwarka / New Delhi Page 14 of 14 DOD: 26.09.2018