Delhi District Court
Sudhir Saran Bhatnagar vs Rajbir Sharma on 24 December, 2011
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS: DELHI
Suit No 15/08
Unique Case Identification No: 02402C0018782008
IN THE MATTER OF :
Sudhir Saran Bhatnagar
S/o Late Sh. Sukhbir Saran Bhatnagar
R/o 234, Farash Bazar,
Shahdara, Delhi110032 .... Plaintiff
Versus
1. Rajbir Sharma
S/o Late Sh. Ram Richpal Sharma
2. Smt. Poonam Sharma
W/o Late Sh. Mukesh Sharma
Both Residents of Flat No. 2, Bearing
Municipal No. 1/1086, First Floor,
Railway Road, Shahdara,
Delhi110032 .... Defendants
A. Date of Institution of Suit : 07.01.2008
B. Reserved for Judgment : 16.12.2011
C. Date of Judgment : 24.12.2011
D. Final Order : SUIT DISMISSED FOR RELIEF
OF DECREE FOR POSSESSION
& DECREED FOR THE RELIEF
OF RECOVERY OF RENT.
Suit No. 15/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 1/32
SUIT FOR POSSESSION AND FOR RECOVERY OF RENT AND
DAMAGES FOR USE AND OCCUPATION.
J U D G M E N T
1. PRAYER IN THE SUIT :
Plaintiff has prayed for decree of possession in favour of plaintiff and against the defendants in respect of flat no. 2 bearing Municipal No. 1/1086, existing on the first floor portion of the property known as Harsaran Niwas situated at Railway Road, Shahdara, Delhi as shown in red in the site plan Ex. PW1/4. Also plaintiff has prayed for a decree for arrears of rent amounting to Rs. 360/ (@ Rs.20/ p.m. for the period from 01.01.2005 to 30.06.2006). Further plaintiff has prayed for decree for Rs.2700/ on account of damages for use and occupation (for the period from 1.07.06 to 31.12.07) alongwith pendentelite damages @ Rs. 150/ per month for subsequent period accruing during the pendency of the suit till the passing of the decree in favour of plaintiff.
2. CASE OF PLAINTIFF :
In brief case of plaintiff is that late Sh. Sukhbir Saran Bhatnagar s/o late Sh. Harsaran Dass, father of plaintiff, had let out a flat no. 6 (now known as flat no. 2) bearing Municipal No. 1/1086, existing on the first floor portion of the property known as Harsaran Niwas situated at Railway Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 2/32 Road, Shahara, Delhi as depicted in red boundaries in site plan Ex. PW1/4 (hereinafter referred to as "tenanted flat") to Sh. Ram Richpal Sharma s/o late Sh. Sis Ram Sharma for residence on a monthly rent of Rs. 20/ per month w.e.f. 1st January 1959 on the basis of the Rent Deed dated 29/12/1958 duly executed by him in favour of his aforesaid landlord (Sh. Sukhbir Saran Bhatnagar, father of plaintiff) at the time of commencement of tenancy. As per plaintiff, after expiry of the period of the aforesaid Rent Deed which was for a period of 11 months w.e.f. 01/01/1959, since the contractual tenancy of Sh. Ram Richpal Sharma came to an end by efflux of time, Sh. Ram Richpal Sharma continued to retain the possession of tenanted flat as statutory tenant from 01/12/1959 onwards during the remaining period of his life on the same terms and conditions.
Plaintiff has further alleged that as per decree of declaration in Suit No.691/09 on the basis of the family arrangement between late Sh. Sukhbir Saran Bhatnagar (father of plaintiff), plaintiff and his other family members, passed by the court of Sh. R. L. Gupta, SubJudge, First Class, Delhi 26/02/1970, the flat in question (tenanted flat) bearing Municipal No. 1/1086 as detailed above fell to the exclusive share of plaintiff as owner/landlord and since then late Sh. Ram Richpal became the tenant of plaintiff in respect of tenanted flat on the same terms and conditions and he Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 3/32 accordingly acknowledged the plaintiff as his landlord.
Further, case of plaintiff is that after the death of Sh. Ram Richpal Sharma which took place about 7 years back, his wife Smt. Shanti Devi being the surviving spouse who was living with him in the tenanted flat in at the time of his death and was also financially dependent upon him, inherited the tenancy rights in respect of tenanted flat by virtue of the protection enjoyed by her under section 2 Sub clause (iii) vide Explanation I & II Sub Clause (a) of Delhi Rent Control Act as amended by Act No. 18 of 1976. As alleged, after death of late Sh. Ram Richpal Sharma, Smt. Shanti Devi continued to retain the possession of tenanted flat as tenant under plaintiff till her death which, as per the knowledge of plaintiff, took place in the month of June, 2006. As per plaintiff, defendants being the other natural heirs of late tenant Sh. Ram Richpal Sharma are vested with no legal right to retain the possession of tenanted flat and as such are liable to be dispossessed from the same.
As alleged by plaintiff, Smt. Shanti Devi, widow of late original tenant Sh. Ram Richpal Sharma did not pay the rent due @ Rs. 20/per month after the death of Sh. Ram Richpal Sharma which had taken place about 7 years back and defendant being his legal heirs are thus liable to pay the legally recoverable arrears of rent from 01/01/2005 to 30/06/2006 at the Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 4/32 rate of Rs. 20/ per month amounting to Rs.360/. Further, as per plaintiff, since defendants are retaining and enjoying the possession of tenanted flat without any legal right, they are liable to pay damages/use and occupation charges @ Rs. 150/ per month from 01/07/2006 to 31/12/2007 amounting to Rs.2700/ . In all, as alleged, defendants are liable to pay a sum of Rs. 3060/ on account of rent and damages. Hence this Suit.
3. DEFENDANTS VERSION :
Both the defendants have filed common written statement. In their WS defendants have admitted that father of defendant no.1 was tenant during his lifetime and after his death defendants alongwith their family members are residing in the suit property (tenanted flat). In reply to the averments of plaintiff that after the expiry of period of Rent Deed which was for period of 11 months w.e.f 01/01/1959, Mr. Ram Richpal Sharma continued to retain the possession of the tenanted flat as statutory tenant from 01/12/1959 onwards during the remaining period of his life on the same terms and conditions, reply of defendants is that contents of paragraph 2 of plaint are matter of record and possession continued with the defendants and their family members. The averments of the plaintiff to the effect that suit property (tenanted flat) fell to the exclusive share of plaintiff as owner/landlord have been denied by defendants. As per defendants, Smt. Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 5/32 Shanti Devi was residing in the suit property (tenanted flat) alongwith her sons and daughters and plaintiff is habitual of filing false and fictitious suit against the tenants as it clear from Judgment of Sh. Dilbagh Singh Ld. ARC in E217/89 dated 9.12.1998. As alleged, defendant no.1 Rajbir Singh is residing in the tenanted premises/flat since his birth and defendant no. 2 is residing in the tenanted portion since the date of her marriage alongwith their family members (children). As per defendants, plaintiff has failed to make all the LRs as necessary party in the present suit. As alleged, defendants have legal right to retain the possession of the tenanted portion.
As alleged, defendant no.1 sent the money order vide receipt no. A5917 dated 28/03/2007 for Rs.1000/ to plaintiff which was returned with the remarks "bar bar jane per prpatkarta nahi milta hai" by postal authorities. As alleged, plaintiff was having knowledge of said money order as information was given to his family members but even then plaintiff did not take money order intentionally. As alleged, defendants are ready to pay the rent even in the court at any time when plaintiff desires to take the same under receipts. Further, defendants have alleged that prior to this, rent was tendered even at his residence but plaintiff refused to take the same as he wanted to create some grounds for eviction. In their WS, defendants have further submitted that as per the authority of Hon'ble Supreme Court, the Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 6/32 tenancy is inheritable and the defendants have every right of retaining and enjoying the possession of tenanted premises/suit property. Defendants have denied the claim of plaintiff towards damages or for a sum of Rs. 3060/ as claimed in the suit. Lastly defendants have prayed for rejection of the suit being misconceived.
4. REPLICATION :
Plaintiff had filed replication to the WS of defendants wherein defence/stand of defendant was denied and the averments made in plaint were reaffirmed.
5. ISSUES :
Vide order dated 02/09/2008 ld. predecessor of this court framed the following issues:
1. Whether the defendants have any legal right to reside in the suit property?OPD
2. Whether the plaintiff is entitled to the possession of the suit property?OPP
3. Whether the plaintiff is entitled to arrears of rent and damages from the defendants? If so at what rate and for what term?OPP
4. Relief.
6. Thereafter on 08/10/08 affidavit of Sh. Sudhir Saran Bhatnagar was tendered in plaintiff's evidence and case was adjourned for cross examination of this witness.
Suit No. 15/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 7/32
7. AMENDMENT APPLICATION :
On 24/08/09 an application u/o 6 Rule 17 r/w S. 151 CPC was moved on behalf of defendants. Reply was filed by plaintiff to this application of defendants and after hearing the arguments of ld. counsel for parties ld. predecessor of this court vide order dated 17/12/09 allowed the application U/O 6 Rule 17 r/w S. 151 CPC subject to costs of Rs. 2000/ to be paid by defendants to plaintiff and amended WS was taken on record. Also opportunity was given to plaintiff to file replication to the amended WS and matter was fixed for framing of issues.
8. AMENDED WRITTEN STATEMENT :
In the amended WS, additional stand which has been taken by defendants is that tenanted premises consist of shop no. 1/1089, Old shop no.1, Harsaran Niwas, Shahdara Delhi32 and a residential house bearing no. 1/1086, Harsaran Niwas, Old Flat No. 2 which forms is single tenancy and rate of rent of both the premises is Rs. 35/ per month jointly. As alleged, plaintiff has filed this suit in respect of part of tenanted premises which is being used for the residential purposes.
9. REPLICATION TO AMENDED WRITTEN STATEMENT :
To the amended WS, plaintiff has filed replication wherein plaintiff submitted that tenancy in respect of flat in question (tenanted flat) existing Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 8/32 on the first floor had been created in favour of original tenant Sh. Ram Richpal Sharma on the basis of Rent Deed dated 29/12/1958 on a monthly rent of Rs.20/ w.e.f. 1/1/1959 while the shop existing on ground floor portion bearing no.1/1089 had been let out to late Sh. Ram Richpal on monthly rent of Rs.15/. As per plaintiff, both tenancies created in favour of Sh. Ram Richpal, now represented by the defendants as legal heirs, are distinct and separate. As per plaintiff in the eviction petition no. E217/89 filed by plaintiff against late Sh. Ram Richpal under section 14 (1) (a), (b) &
(j) of DRC Act pertaining to shop no. 1 bearing Municipal No. 1/1089, it was categorically held by ld. ARC that the tenancy of residential flat and that of shop are two different tenancies. In the replication plaintiff has denied the defence taken by defendant and has also reaffirmed the averments made in the plaint. As per plaintiff, the fact that defendant no.1 has been residing in the tenanted premises since his birth and defendant no.
2 has been residing therein since her marriage alongwith their family members does not confer any right of tenancy upon the defendants or their dependents.
10. ADDITIONAL ISSUE :
Vide order dated 17/03/10 ld. predecessor of this court framed following additional issues in view of the fact that application moved by Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 9/32 plaintiff u/o 6 Rule 17 r/w S. 151 CPC was allowed.
Issue no. 4:
Whether premises shop no. 1089, Old shop no. 1, Harsaran Niwas Shahdara and premises no. 1086, Harsaran Niwas, residential flat no. 2, were let out by way of a single tenancy @ Rs. 35/ per month for both the premises jointly? If so, its effect?OPD
11. EVIDENCE :
To substantiate his case on judicial file, plaintiff has himself appeared in the witness box as PW1 and PE was closed on 08/09/10 by Sh. R.K. Shukla, Advocate for plaintiff by making separate statement to that effect. Defendant no. 1 has appeared in the witness box as DW1. He had filed his examination in chief by way of affidavit Ex. DW1/X. Defendant's evidence was closed on 08/03/11 by Sh. Rakesh Kapoor, Advocate for defendants by making separate statement to that effect.
12. ARGUMENTS :
I have heard Sh. R. K. Shukla Adv. for plaintiff and Sh. M.N. Kural Adv. for defendants and have gone through material available on judicial file very carefully. Written submissions have also been filed by ld. counsel for plaintiff. Ld. counsel for plaintiff has relied upon case laws reported as
(i) Gordhan Vs. Ali Bux AIR 1981 Rajasthan 206 and (ii) Sillicon Graphics Systems India Pvt. Ltd. Vs. Nidas Estates Pvt. Ltd. & Ors. 182 (2011) DLT Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 10/32
753.
13. FINDINGS OF THE COURT :
My issuewise findings are as under : ISSUE No.1 Whether the defendants have any legal right to reside in the suit property?OPD ISSUE No.2 Whether the plaintiff is entitled to the possession of the suit property? OPP I shall be deciding both of these issues under common discussion because both the issues are interconnected as much as decision on one issue will have affect decision on the another issue. If issue no.1 is decided in favour of defendants then issue no.2 cannot be decided in favour of the plaintiff and if issue no.2 is decided in favour of plaintiff then issue no.1 cannot be decided in favour of defendants.
In the case in hand plaintiff is relying upon Rent Deed Ex. PW1/1 executed by original tenant Sh. Ram Richpal Sharma on 29/12/1958 which was to take effect for a period of 11 months w.e.f. 1/1/1959. The manner in which para. 2 of plaint has been replied by defendants in their WS makes the court to conclude that Rent Deed Ex. PW1/1 stands admitted by defendants in toto. Despite this all that defendant no.1 in his affidavit filed Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 11/32 in defendants evidence in para. 4 has taken a stand that no rent agreement between father of defendant no.1 and father of plaintiff was ever executed. Obviously stand taken in para. 4 of affidavit Ex. DW1/X of defendant no.1 (DW1 Mr. Rajbir Sharma) cannot be acted upon/believed by Court in as much as evidence beyond pleadings cannot be looked into by Court. Also it is to be noted that Rent Deed Ex. PW1/1 is being produced from proper custody of plaintiff who is son of original landlord Mr. Sukhbir Saran Bhatnagar and is a 30 years old document and hence section 90 of Evidence Act applies in this case. Also translation of Rent Deed Ex.PW1/1 which has been proved/ produced by plaintiff deserves to be acted upon by the Court in as much as no other translation thereof has not been even suggested by defendants. Also no benefit can be given to defendants by reason of the fact that plaintiff in his crossexamination has referred to a typed Rent Deed whereas Rent Deed Ex. PW1/1 is a hand written Rent Deed in as much as copy of hand written Rent Deed was filed by plaintiff alongwith plaint but defendants did not raise any objection to the same. Also PW1 Mr. Sudhir Saran Bhatanagar was not confronted with Rent Deed Ex. PW1/1 in the course of his crossexamination to clarify the aspect as to whether Rent Deed Ex. PW1/1 was in hand written document or typed document. Rather, defendants replied the said paragraph of plaint which referred to Rent Deed Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 12/32 Ex. PW1/1 in the manner as if they (defendants) are admitting the Rent Deed Ex. PW1/1 in toto. It is noteworthy that translation of Rent Deed Ex. PW1/1 which has been exhibited as Ex. PW1/2 is a typed document & it so appears that PW1 Mr. Sudhir Saran Bhatnagar has referred to typed Rent Deed by reason of slip of tung. Also in view of case law reported as Gordhan Vs. Ali Bux AIR 1981 Rajasthan 206 Rent Deed Ex. PW1/1 did not require registration & it can be read as evidence of its various terms and condition agreed to be abided by the original tenant late Sh. Ram Richpal Sharma who is sole executant of the said Rent Deed Ex. PW1/1. Thus, to my mind Rent Deed Ex. PW1/1 stands duly proved in evidence and can be read in evidence. Also in the case in hand plaintiff can be said to be owner of tenanted flat in view of Ex. PW1/D16 (Mark A) vide which tenanted flat had come to the share of plaintiff. Also receipts Ex. PW1/D11, PW1/D3, PW1/D4, PW1/D5, PW1/D6, PW1/D7, PW1/D8, PW1/D9, PW1/D10, PW1/D11 and PW1/D13 goes to suggest that original tenant namely late Sh. Ram Richpal Sharma admitted plaintiff to be his landlord/owner of the tenant flat and stood attorned to him as such. Further in totality of the facts and circumstances of this case it can be said that there is no dispute as to the identity of the tenanted flat in as much as, as the facts of the case suggest, only one flat (tenanted flat) and shop was under the tenancy of late Sh. Ram Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 13/32 Richpal Sharma. As such it can be said that tenanted flat which was earlier having flat no.6 is now having flat no.2 as has been pleaded by plaintiff bearing municipal no.1/1086 existing on first floor portion of property known as Harsaran Niwas situated that at Railway Road Shahdara, Delhi as shown in red boundaries in site plan Ex. PW1/4.
The case of the plaintiff is that the defendants have no legal right to retain the possession of tenanted flat is as much as tenancy rights of the original tenant namely Mr. Ram Richpal as a statutory tenant were inherited by his wife Smt. Shanti Devi for her life time in terms of provisions of sec. 2(l) explanation I clause (a) read with explanation II and III of DRC Act and after death Smt. Shanti Devi other natural heirs of tenant late Sh. Ram Richpal are vested with no legal right to retain possession of tenanted flat and they are liable to dispossessed from the same.
On the other hand case of the defendants is that plaintiff has failed to make all the LRs as necessary party in the present suit and they have legal right to retain possession of the tenanted portion. The averment of the plaintiff to the effect that after the expiry of period of Rent Deed which was for period of 11 months w.e.f 01/01/1959, Mr. Ram Richpal Sharma continued to retain the possession of the tenanted flat as statutory tenant from 01/12/1959 onwards during the remaining period of his life on the Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 14/32 same terms and conditions, has been replied by the defendants as being matter of record and that possession continued with the defendants and their family members. In the course of arguments ld. counsel for defendants head drawn the attention of the Court towards averments made in para. 3 of the plaint wherein it has been alleged that after the decree of declaration in suit no.691/09 late Sh. Ram Richpal became the tenant of the plaintiff in respect of tenanted flat on the same terms and conditions and he (late Sh. Ram Richpal) acknowledged the plaintiff as his landlord. Also ld. counsel for defendants had drawn attention of the Court towards para.2 of the plaint wherein plaintiff has alleged that late Sh. Ram Richpal continued to retain the possession of the tenanted flat as statutory tenant from 1/12/1959 onwards during the remaining period of his life on same terms & conditions. It has been submitted that in the above mentioned circumstances all the LRs of Mr. Ram Richpal became the tenant in respect of tenanted flat in as much as throughout the life time of Mr. Ram Richpal no notice of termination of tenancy was served upon Mr. Ram Richpal. It is submitted that in this back ground when all the LRs of late Sh. Ram Richpal had become tenants in respect of tenanted flat, this civil suit is not maintainable against the present defendants who are tenants with regard to the tenanted flat.
On the other hand it has been submitted ld. counsel of plaintiff that Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 15/32 Rent Deed Ex.PW1/1 was for a period of 11 months and it did not require registration in view of case law report as Gordhan Vs. Ali Bux AIR 1981 Rajasthan 206 in as much as Ex. PW1/1 as been signed by Mr. Ram Richpal (the tenant) only and Ex. PW1/1 does not come within the definition of "Lease". And, as such, after expiry of 11 months period of the abovesaid Rent Deed late Mr. Ram Richpal became a statutory tenant and on his death tenancy rights are to be governed as per the provision of sec. 2(l)(iii) r/w explanation. I clause (a) and explanation. II and III of the DRC Act. As submitted, when so understood after the death of Smt. Shanti Devi (w/o late Sh. Ram Richpal) who was residing with late Sh. Ram Richpal in tenanted flat and was financially dependent on Sh. Ram Richpal on whom alone tenancy rights of late Sh. Ram Richpal Sharma devolved, the tenancy right of late Sh. Ram Richpal as a statutory tenant did not devolve on other other heirs of late Sh. Ram Richpal like the defendant and, as such, defendants have no right to remain in possession of the tenanted flat.
Whether or not defendants have any right to remain in possession of tenanted flat depends on answer to another question as to whether late Sh. Ram Richpal throughout his life continued to be a statutory tenant only or in the facts and circumstances of this case the tenancy of Sh. Ram Richpal stood renewed after the expiry of 11 months period of Rent Deed Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 16/32 Ex.PW1/1.Case of plaintiff is that Smt. Shanti Devi did not pay rent due after the death of Sh. Ram Richpal Sharma which had taken place 7 years back. This suggest that rent was paid by Sh. Ram Richpal Sharma throughout his life and original landlord Mr. Sukhbir Saran Bhatnagar or the plaintiff accepted the same. Now section 116 of Transfer of Property Act comes into picture.
In the written submissions, plaintiff/his counsel has stated that since protection was accorded to Sh. Ram Richpal Sharma by provisions of Delhi Rent Control Act, 1958 which had come into force, Mr. Ram Richpal continued to retain the possession of the tenanted flat as statutory tenant from 1/12/1959 onwards during the remaining period of his life on the same forms and conditions. In this case even after 1/12/59 rent stood accepted by original landlord Mr. Sukhbir Saran Bhatnagar or plaintiff from Mr. Ram Richpal Sharma. At this juncture it would be pertinent to refer to one case law reported as Ganga Dutt Murarka Vs. Kartik Chandra Das & Others AIR 1961 SC 1067 wherein it has been observed/ruled as under : "4. Section 116 of the Transfer of Property Act in so far as it is material provides that if a lessee of property remains in possession thereof after the determination of the lease granted to him and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 17/32 year or from month to month according to the purpose for which the property is leased as specified in S. 106. It is, however, well settled that where a contractual tenancy to which the rent control legislation applied has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. It was observed by B. K. Mukherjea, J., (as he then was) in Kai Khushroo v. Bai Jerbai, 1949 FCR 262: (AIR 1949 FC 124) :
"On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sublessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent or dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession a new tenancy comes into existence as is contemplated by S. 116, T. P. Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of S. 106 of the Act."
It was further observed :
"................... in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 18/32 a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge, by way of defense, in a suit for ejectment brought against him under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quite".
5. Under the Calcutta Rent Ordinance, 1946, and the subsequent legislation which culminated in the West Bengal Premises Rent Control Act, 1950, in the expression "tenant" was included any person who continued in possession after termination of his tenancy. Section 12 of the West Bengal Premises Rent Control Act, 1950, expressly protects a tenant whose lease has expired. By the Rent Restriction Statutes at the material time, statutory immunity was granted to the appellant against eviction, and acceptance of the amounts from his him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of S. 116, Transfer of Property Act. Failure to take action which was consequent upon a statutory prohibition imposed upon the courts and not the result of any voluntary conduct on the part of the appellant did not also amount to "otherwise assenting to the lessee continuing in possession." Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 19/32 and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not, unless the statute provides otherwise, be conditioned."
Now this Court is to see whether in the facts and circumstances of this case conduct of the parties justify an inference that after the determination of the contractual tenancy, the original landlord Sh. Sukhbir Saran Bhatnagar had entered into a fresh contract with Sh. Ram Richpal Sharma during his life time so that if can be said that after 1/12/1959 Sh. Ram Richpal Sharma occupied the tenanted flat not as a statutory tenant but as a contractual tenant by holding over. In the totality of facts and circumstances of this case, as a commulative effect of the following reasons it can be said Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 20/32 that after 1/12/1959 a fresh contract of tenancy came into existence between Sh. Sukhbir Saran Bhatnagar and Sh. Ram Richpal Sharma.
(a). The law is that in cases where a tenant after expiry of contractual tenancy continues to occupy the tenanted premises and such tenant is having immunity against eviction due to statutory protection accorded by rent control legislation, by mere acceptance of rent or an amount equivalent to rent, the landlord cannot, in the absence of any other evidence of conduct on the part of the lessor to give such assent irrespective of the statutory protection, be deemed to have given assent to the tenant's continuing in possession on of tenanted premises Meaning thereby that such an assent on the part landlord can be assumed/said to be in existence if there exist other circumstance indicating existence of such assent by reasons other than by reason of mere acceptance of rent by landlord from a tenant occupying the tenanted premises after the expiry of contractual tenancy.
In the case in hand, plaintiff has himself asserted in the plaint that Sh. Ram Richpal Sharma continued to retain possession of the tenanted flat as statutory tenant from Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 21/32 1/12/1959 onwards during the remaining period of his life on the same terms and conditions (Para. 2). Again in para. 3 of plaint, plaintiff as asserted that since 26.2.1970 late Sh. Ram Richpal Sharma became the tenant of plaintiff in respect of tenanted flat on the same terms and conditions. The fact that plaintiff himself is seeking enforcement of the terms and conditions of Rent Deed Ex. PW1/1 even after 1/12/1959 is indicative of the assent of original landlord for Sh. Ram Richpal Sharma to continue in possession of tenanted flat irrespective of protection under DRC Act. Had it been the case that Sh. Sukhbir Saran Bhatnagar only accepted the rent or an amount equivalent to rent from Sh. Ram Richpal Sharma after 1/12/1959 & did nothing else or did not agree to any other terms & conditions, no such assent on the part of Sukhbir Saran Bhatnagar could have been said to be in existence. But here besides acceptance of rent, original landlord Mr. Sukhbir Saran Bhatnagar himself has asserted about the enforcement of other terms and conditions of Rent Deed Ex. PW1/1 after expiry of its terms of 11 months w.e.f. 1/1/1959 & thus it can be said that assent was there on the part of original landlord Mr. Sukhbir Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 22/32 Saran Bhatnagar for Sh. Ram Richpal Sharma (tenant) to remain in possession of tenanted flat by reason of a new contract coming into existence after 1/12/59.
(b). Also in the plaint there is no specific averment that original landlord did not want to continue to keep late Sh. Ram Richpal Sharma as his tenant after 1/12/1959 & that original landlord Sh. Sukhbir Saran Bhatnagar could not taken action against the Sh. Ram Richpal Sharma for his eviction from the tenanted flat merely because Sh. Ram Richpal Sharma enjoyed protection from eviction under the DRC Act. In fact even the applicability of the provisions of DRC Act has not been specifically proved on judicial file by plaintiff by leading cogent & convincing evidence in this regard by referring to statutory provision/ notifications from competent authority extending the DRC Act to the area whee tenanted flat is situated. But as the applicability of the provisions of DRC Act to the tenanted flat has not been disputed by defendants and hence this Court will proceed with the assumption that provisions of DRC Act are applicable to the tenanted flat. The fact that at no point of time during the life time of late Sh. Ram Richpal Sharma original Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 23/32 landlord Mr. Sukhbir Saran Bhatnagar or plaintiff did not serve late Sh. Ram Richpal Sharma with any notice for terminating the tenancy of late Sh. Ram Richpal Sharma also is indicative of the factum that original landlord wanted to continue to keep late Sh. Ram Richpal Sharma as his tenant even after 1/12/1959. In fact there is nothing on judicial file to suggest that after 1/12/1959, original landlord Sh. Sukhbir Saran Bhatnagar or even the plaintiff after 26/2/1970 was anxious to obtain the possession of tenanted flat let out to late Sh. Ram Richpal Sharma but they were unable to obtain assistance of Court in view of the protection accorded to late Sh. Ram Richpal Sharma by the provisions of DRC Act. Absence of such anxiousness is also apparent from the rent receipts. Ex. DW1/P1 (vide which original landlord received rent for the period from January 1963 to January 1964 0n 12.2.1964), Ex. DW1/P13 (vide which original landlord received rent for the months of September & October 1960 on 2/11/1960) and Ex. PW1/D14 (vide which original landlord Sh. Sukhbir Saran Bhatnagar received rent of Rs.455/ upto 30/11/1961 on 2/12/1961). As per Rent Deed Ex. PW1/1 rent was to be paid Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 24/32 by late Sh. Ram Richpal Sharma month by month (clause 1). But above receipts show that late Sh. Ram Richpal Sharma did not pay the rent month by month & thus committed in default of payment of rent in terms of Rent Deed Ex. PW1/1. But despite this default, original landlord did not take necessary legal action against late Sh. Ram Richpal Sharma for his eviction from the tenanted flat. Also the fact that abovesaid receipts shows payment of rent by late Sh. Ram Richpal Sharam to Sh. Sukhbir Saran Bhatnagar is also indicative of the fact that Sh. Sukhbir Saran Bhatnagar continued to keep late Sh. Ram Richpal Sharma as his tenant.
However it is pertinent to note that present plaintiff also continued the accept the so called use and occupation charges from late Sh. Ram Richpal Sharma vide receipts Ex. PW1/D11, Ex. PW1/D3, Ex. PW1/D4, Ex. PW1/D5, Ex. PW1/D6, Ex. PW1/D7, Ex. PW1/D8, Ex. PW1/D9, PW1/D10, Ex. PW1/D11, Ex. PW1/D13 for a number of month together despite there being violation of clause (1) of the Rent Deed Ex. PW1/1 regarding payment of rent month by month but still present plaintiff did not initiate legal action against late Sh.
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SCJCumRC:East, Delhi
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Ram Richpal Sharma for his eviction from the tenanted flat except by filing a petition u/s 19 of Slum Areas (Improvement & Clearance) Act 1956 vide Ex. PW1/3 in 1978 and eviction petition in the year 1989. The fact that original landlord continued to accept rent and thereafter even the present plaintiff continued to accept the so called use and occupation charges continuously from late Sh. Ram Richpal Sharma since 1959 till the year 1978 without initiating legal action for his eviction from tenanted flat despite there being default on the part of late Sh. Ram Richpal Sharama in compliance with the terms of Rent Deed Ex. PW1/1 as regards payment of rent month by month suggest that they were not anxious to take possession of tenanted flat form late Sh. Ram Richpal Sharma & the accepted him as his tenant (i.e. contractual tenant) even after 1/12/1959. Also the writing written on the back side of Rent receipt Ex. PW1/D14 bearing no. 1937 dated 2.12.1961 is indicative of the factum that contractual tenancy continued between Mr. Sukhbir Saran Bhatnagar and late Sh. Ram Richpal Sharma even after 1.12.1959.
In fact, the factum of original landlord Sh. Sukhbir Saran Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 26/32 Bhatnagar receiving the rent from late Sh. Ram Richpal Sharma even after 1/12/1959 & not initiating legal action for eviction of late Sh. Ram Richpal Sharma despite there being default on the part of late Sh. Ram Richpal Sharma regarding timely payment of rent as per Ex. PW1/1 (Rent Deed) by itself is indicative of the fact that there came into existence a fresh contractual tenancy between original landlord and late Sh. Ram Richpal Sharma and factum of present plaintiff receiving so called use and occupation charges is immaterial with regard to abovesaid aspect of fresh tenancy coming into existence between original landlord Sh. Sukhbir Saran Bhatnagar and late Sh. Ram Richpal Sharma.
In view of above detailed discussion it is concluded that fresh contractual tenancy had come into existence after 1/12/1959 between original landlord Sh. Sukhbir Saran Bhatanagar and late Sh. Ram Richpal Sharma and on the date of the death of late Sh. Ram Richpal Sharma he can be said to be a contractual tenant rather than a statutory tenant as has been pleaded by plaintiff. A contractual tenancy devolves after the death of such tenant as per general law of inheritance and Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 27/32 provisions of section 2(l) explanation I Clause (a) read with explanation II and III has no application in case of death of a contractual tenant. Provisions of section 2(l) explanation I Clause (a) read with explanation II and III regarding inheritance of tenancy applies in the event of death of a person continuing in possession after termination of his tenancy and when there is no revival or renewal of tenancy either expressly or such conduct on the part of the landlord which suggest that fresh/new contractual tenancy has come into existence. In case in hand, as already observed, fresh contractual tenancy had come into existence between original landlord Sh. Sukhbir Saran Bhatnagar and late Sh. Ram Richpal Sharma and such tenancy, on the death of Sh. Ram Richpal Sharma devolved upon all the classI heirs of late Sh. Ram Richpal Sharma and not only on Smt. Shanti Devi wife/one of the classI heirs of late Sh. Ram Richpal Sharma. When so understood it can not be said that defendants have no right to remain in possession of tenanted flat in as much as after death of Sh. Ram Richpal Sharma, tenancy had devolved upon all the classI heirs which included Smt. Shanti Devi and the defendants. In this back Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 28/32 ground it cannot be said that defendant have no legal right to reside in the suit property/tenanted flat and as such as issue no. 1 a decided against the plaintiff and in favour of the defendants. Also, when it is so plaintiff is not entitled to possession of the suit property/tenanted flat from the defendants through this Civil Suit for possession and recovery of rent/damages. Issue no.2 is decided against the plaintiff.
ISSUE No.3 Whether the plaintiff is entitled to arrears of rent and damages from the defendants? If so at what rate and for what term?OPP Plaintiff in this case has claimed for arrears of rent from 1/1/2005 to 30/06/2006 @ Rs.20/ p.m. as legally recoverable rent in as much as, as per plaintiff, widow of original tenant late Sh. Ram Richpal Sharma did not pay due after the death of late Sh. Ram Richpal Sharma which had taken placed about 7 years back (i.e. 7 years prior to the filing of the suit). Further plaintiff has claimed damages @ Rs.150/ p.m. from 1/07/2006 to 31/12/2007 in as much as, as alleged, defendants are retaining and enjoying the tenanted flat without any legal right. At the outset, in view of my finding on issue no.1 and issue no.2 plaintiff can not be said to be entitled to damages as prayed for. At the most plaintiff can be said to be entitled to recovery of rent @ Rs.20/ p.m. for the period for which plaintiff has Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 29/32 claimed damages if plaintiff able to so that he has not being paid rent afterwards 1.1.2005 till 31.12.2007.
DW1 Mr. Rajbir Singh Sharma in his crossexamination has deposed as under : ".................... I did not make any money order for payment of rent for the period 01/01/2005 to 30/06/2006. Vol. I had personally visited the house/office of the plaintiff in the month of December 2006 for payment of rent for the abovesaid period but plaintiff was not available there. It is correct to suggest that in my WS there is no such averment that I had personally visited the house/office of plaintiff in the month of December 2006 for payment of rent for the abovesaid period but plaintiff was not available there.............................." Admittedly plaintiff did not receive money order sent vide receipt no. A5917 dated 28/03/2007 for Rs.1000/. Defendants in their WS has expressed there willingness to pay the rent in Court. As per Rent Deed Ex. PW1/1 defendants could not have paid rent except against receipt. No receipt has been produced by defendants showing the payment of rent for the period from 1.01.2005 to 30.06.2006 or upto 31.12.2007. In the totality of facts and circumstances of this case defendants are held to be liable to pay rent for the period from 1.01.2005 to 31.12.2007 @ 20/ p.m. As even for the subsequent period (i.e. after the filing of suit till date) rent has not been paid, defendants are also held to be liable to pay rent @ Rs.20/ p.m. for the Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 30/32 period from 1.01.2008 till 31.12.2011. Issue stands decided accordingly. Claim towards damages is declined.
ISSUE No.4 Whether premises shop no. 1089, Old shop no. 1, Harsaran Niwas Shahdara and premises no. 1086, Harsaran Niwas, residential flat no. 2, were let out by way of a single tenancy @ Rs. 35/ per month for both the premises jointly? If so, its effect?OPD Tenancy comes into existence by virtue of contract been two persons. Rent Deed Ex. PW1/1 concerns with the flat no.6 situated at upper floor of building Harsaran Niwas, Approach road, Shahdara, Delhi. There is no mention of shop no.1089, Old shop No.1, Harsaran Niwas, Shahdara, Delhi in the said Rent Deed Ex. PW1/1. Thus it cannot be said that both the shop in question and flat were let out jointly as a single tenanted premises. Merely because one single rent receipts have been issued in respect of shop and flat does not conclusively mean and conclude that both the shop and flat formed together as tenanted premises. If there was joint tenancy of flat and shop then shop should have also found mention Rent Deed Ex. PW1/1. But it is not so in this case. Also vide judgment Ex. PW1/05 it has already been held that tenancies of residential house (i.e. flat) and tenancy of the suit shop (shop in question) are two different tenancies. With the passage of time above finding made in judgment dated 9.12.98 has attained finality as the Suit No. 15/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 31/32 same was not challenged by original tenant late Sh. Ram Richpal Sharma before any higher forum. Thus it is again held that tenancy of tenanted flat which came into existence vide Ex. PW1/1 (Rent Deed) & tenancy of shop at ground floor are two separate tenancies irrespective of the factum that rent in respect of these two tenancies has been accepted through one single/common rent receipt. Issue is decided against the defendants. Relief In view of my findings on above issues, suit of plaintiff qua relief of decree for possession deserves dismissal and is hereby dismissed and it is decreed for a arrears of rent @ Rs.20/ p.m. for the period from 1.01.2005 till 31.12.2011 as relief for decree for damages stands declined. Parties to bear their own cost. Decree sheet be prepared. File be consigned to RR.
Pronounced in the open court. (Anand Swaroop Aggarwal)
24/12/2011 SCJ/East/KKD/Delhi
Suit No. 15/08 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
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