Delhi District Court
Ashok Kumar vs Arvind Kumar on 18 January, 2020
IN THE COURT OF SH. DHEERAJ MITTAL:
ADMINISTRATIVE CIVIL JUDGECUMARCCUMCCJ:
NEW DELHI DISTRICT PATIALA HOUSE COURTS
NEW DELHI
CS No. 57344/16
Ashok Kumar
Son of Late Sh. Beg Ram
WZ25B, Village Naraina
New Delhi110028 .......... Plaintiff
Also at: WZ22A, Village Naraina
New Delhi110028
VERSUS
Arvind Kumar
Son of Sh. Suresh Kumar
(Proprietor of M/s Jagdish Enterprises and M/s
Jagdish Paints & Hardware Store)
WZ25B, Village Naraina
New Delhi110028
Also at:
Sh Arvind Kumar S/o Sh. Suresh Kumar
R/o WZ680, Village Naraina, New Delhi110028
........Defendant
JUDGMENT
Suit For Recovery Of Possession, Arrears Of Rent & Electricity Charges, Damages/Mesne Profit From Tenant.
Date of institution : 29.05.2014
CS No. 57344/2016
Ashok Kumar Vs. Arvind Kumar Page 1 of 16
Date for reserving for judgment : 17.12.2019
Date of judgment : 18.01.2020
Final judgment : Suit dismissed
1. The plaintiff has filed the present suit against the defendant for recovery of possession, arrears of rent and electricity charges, damages/mesne profits. The case of the plaintiff as per the plaint is as under:
That the plaintiff is the owner of the property consisting of two shops and one room at ground floor and two rooms at first floor, situated at property/house bearing no. WZ25B, Village Naraina, New Delhi110028 and both the aforesaid house/property is the ancestral property of the plaintiff. It is further the case of the plaintiff that House Tax receipts in respect of property/house no. WZ25B, village Nariana have been issued in the name of Sh. Bhagwana, the Grandfather (now deceased) of the plaintiff. The total area of property bearing no. WZ25B is admeasuring about 150 Sq.Yds. It is alleged in the plaint that after the death of Sh. Bhagwana, the house bearing no. WZ25B was divided by an oral and mutual agreement among the legal heirs of Sh. Bhagwana and by the said mutual agreement, the aforesaid two shops and one room at ground floor and two rooms at first floor which is part of property bearing no. WZ25B, falls in the share of Sh. Beg Ram son of Late Sh. Bhagwana and father of the plaintiff. It is further alleged by the plaintiff that during his lifetime, Sh. Beg Ram (now deceased), by an oral and mutual agreement, divided his property among his legal heirs and by virtue of said oral and mutual agreement, the plaintiff becomes the owner of the aforesaid two shops and one room at ground CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 2 of 16 floor and two rooms at first floor, situated at property/house bearing no. WZ 25B, Village Naraina, New Delhi. It is further case of the plaintiff that the defendant is the tenant of the plaintiff at his one shop situated at house bearing no. WZ25B, Village Naraina, New Delhi110028, the details of which are more particularly described in the Schedule of property attached as Annexure D (hereinafter referred to as "suit shop") and the suit shop has been shown in red colour in the site plan. It is alleged by the plaintiff that it was an old and oral tenancy and no lease deed was executed between the plaintiff and the defendant for letting out the suit shop. The tenancy was from month to month basis starting from first day of each English calendar month and expiring on the last day. It is further stated in by the plaintiff that as on October, 2012, the monthly rent of the suit shop was Rs. 6000/ per month and since Nov. 2012, the defendant is not paying any rent and electricity charges to the plaintiff and as such, the defendant is in arrears of rent and electricity charges since Nov. 2012. The plaintiff has demanded the monthly rent and electricity charges from the defendant number of time but the defendant avoided to pay the same on one pretext or the other. It is stated by the plaintiff in the plaint that the defendant is doing a business of Paints, Hardware and sanitary items in the suit shop under the name and style of M/s Jagdish Enterprises and M/s Jagdish Paints & Hardware and the defendant is the sole proprietor of both his aforesaid business firms. It is further stated by the plaintiff that plaintiff issued a legal notice dated 29.01.2014 to the defendant through his Advocate and terminated the tenancy of the suit shops. However, the defendant has failed to vacate the suit shop and failed to clear the arrears of rent etc, hence CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 3 of 16 present suit. The plaintiff has claimed following reliefs in the present suit:
"a. Possession of suit shop which is shown in red colour in the site plan attached;
(b) Recovery of Rs. 1,15, 733/ towards the arrears of rent and electricity charges;
c. Damages and mesne profit and electricity charges from 16.02.2014 till filing of the suit, total amounting Rs. 26,667/ for the illegal use and occupation of the suit shop.
d. A preliminary decree for future damages, mesne profit at the rate of Rs. 7000/ per month and electricity charges, at the rate of Rs. 1000/ or any other sum which this Court determine after holding the enquiry.
e. The plaintiff is further claimed for interest Pendente lite and future interest on the arrears of rent and mesne profits @ 24% per annum;
e. Cost of legal notice ie. Rs. 5100/ f Cost of the suit".
2. Summons for settlement of issued were issued to the defendant, who appeared and filed his written statement. In the WS, the defendant disputed the averments made by the plaintiff. The defendant took several objections interalia, the plaintiff has no locus standi to file the present suit as he was/is neither the owner nor the landlord of suit shop, no proof has been placed on CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 4 of 16 record to show that deceased Bhagwana was the original owner of the suit shop, the suit is bad for misjoinder/nonjoinder of necessary parties as all the LRs of deceased Bhagwanan have not been impleaded and Sh. Suresh Kumar Proprietor of M/s Jagdish Paints & Hardware who is in actual possession of the suit shop has not been impleaded, the defendant is not the proprietor of the said firms. It is further stated that defendant could not succeed in the business and closed his business in the year 2013 and surrender the TIN number to the Department of VAT, Govt. of NCT of Delhi. It is further stated that the suit shop is being run by the father of the defendant Sh. Suresh Kumar as proprietor of M/s Jagdish Paints & Hardware since long. The defendant also disputed the veracity of the site plan filed by the plaintiff.
3. Thereafter, plaintiff filed his replication to the written statement denying the averments made in the written statement and reiterating those made in the plaint.
4. On the basis of the pleadings, the following issues were framed by my Ld. Predecessor on 24.03.2015:
1. Whether the plaintiff is entitled to a decree of possession of the suit property?OPP
2. Whether the plaintiff is entitled to a decree for recovery of Rs. 1,15,733/ toads arrears of rent and the electricity charges ?OPP
3. Whether the plaintiff is entitled to damages and mesne profits and CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 5 of 16 electricity charges from 16.02.2014 till the date of filing of the present suit? OPP
4. Whether the plaintiff is entitled to preliminary decree for future damages and mesne profits @ 7000/ per month and electricity charges @ Rs. 1000/ or such other sum as determined on enquiry?OPP
5. Whether the plaintiff is entitled to pendente lite and future interest on the arrears of rent and mesne profits @ 24% per annum and costs of the suit.?OPP
6. Whether the plaintiff has no locus standi to file the present suit?OPD
7. Whether the suit is liable to be dismissed for misjoinder and non joinder of necessary parties?OPD
8. Whether the suit is liable to be dismissed for want of cause of action and for suppression of material facts?OPD
9. Whether the suit is liable to be dismissed for want of the correct site plan?OPD
10. Relief.
5. Thereafter, the matter was listed for plaintiff evidence. In support of his case, the plaintiff examined himself as PW1. PW1 led his evidence by way of affidavit Ex.PW1/A, reiterated the averments made in the plaint and mainly relied upon the following documents : CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 6 of 16 i. House Tax Receipt in name of his grandfather late Sh. Bhagwana, Ex. PW1/1 (colly) (running into three pages), ii. Photocopy of his election identity card Ex. PW1/2 (OSR), iii. Electricity bill Ex. PW1/3, iv. Schedule of property Ex. PW1/4, v. Site plan of the suit shop Ex. PW1/5, vi. Photograph of suit shop Ex. PW1/6 vii. Copy of Dealer Statement cum Verification report by VAT Inspector dated 18.10.2012 Ex. PW1/7 (running into five pages) (OSR) viii. Certified copy of inspection report bearing no. 125828 and No objection Certificate Ex. PW1/8 (colly) (running into three pages) ix. Legal notice Ex. PW1/9 x. Postal receipt Ex. PW1/10 (colly) and xi. AD card Ex. PW1/11 5.1 Plaintiff also examined the following witnesses:
(i). PW2 Ajay Kumar, Junior Judicial Assistant, Record Room, Civil, Dwarka Delhi who produced the record that is written arguments and documents filed alongwith the written arguments filed on behalf of the respondent, Mr. Suresh Kumar in the Eviction Petition bearing no.
11/11case titled Ram Bhajan Vs. Suresh Kumar decided on 25.04.2013 in the Court of Ms. Surya Malik Grover, Ld. ACJ cum ARC, Dwarka Courts, CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 7 of 16 New Delhi. Photocopy of the same is Ex. PW2/A (15 pages).
(ii.) PW3 Sh. Om Prakash who had brought the summoned record ie. dealer's statement cum verification report by value added tax inspector and statement of the dealer. Photocopy of the same is Ex. PW3/A (OSR)
(iii). PW4 Sh. Suresh Singh, Relation Inspector has brought the letter bearing no. L1/Court Case23/201516 dated New Delhi1100028 issued by Senior Superintendent of Post Offices, New Delhi wherein it has been mentioned that the summoned record has been weeded out being time barred as per departmental rules. He has brought the attested copy of the departmental rules which is Ex. PW4/A.
(iv). PW5 Sh. Gurcharan Dass being the tenant in the adjoining shop. He has tendered his affidavit as Ex. PW5/1 and relied upon Rent Receipts issued by the plaintiff Ex. PW5/1 and copy of Aadhar Card Ex. PW5/2
6. Thereafter, PE was closed on 08.10.2016 and the matter was listed for DE.
7. In DE, defendant examined himself as DW1. DW1 tendered his evidence by way of affidavit Ex. DW1/A and mainly relied upon the following documents:
i. Ex. PW1/D1 Site plan and the written statement filled by DW1.
ii. Ex. DW1/2 Invoices of Jagdish Enterprises issued by DW1.CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 8 of 16
iii. Ex. DW1/3 invoices of Jagdish Enterprises issued by DW1.
iv. Ex. DW1/4 application for cancellation for registration under Delhi Value added Tax Act dated 20.12.2013.
v. Ex. DW1/5 statement of account of Jagdish Enterprises.
vi. Ex. DW1/6 Notice dated 09.01.1989 issued to Mr. Suresh Kumar by the Controller of Legal Metrology, Delhi.
vii. Ex. DW1/7 Notice dated 11.07.2002 issued to Mr. Suresh Kumar by the Controller of Legal Metrology, Delhi.
viii. Ex. DW1/9 SARAL forms alongwith balance sheets for the period of 200102, 200203, 200304, 200708, 201112 and 201213 of Mr. Suresh Kumar.
ix. Ex. DW1/10 Notice dated 09.04.2010 issued to Mr. Suresh Kumar by the Income Tax Department u/s 221 (1) of IT Act.
7.1 The defendant further examined the following witnesses:
(i). DW2 Sh. Sh. Devender Kumar. He tendered his evidence by way of affidavit Ex. DW2/1.
(ii). DW3 Sh. Mahender Kumar. He tendered his evidence by way of affidavit Ex. DW3/1.
(iii). DW4 Sh. Mahinder Kumar. He has produced the summoned record CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 9 of 16 of electricity bills bearing CA No. 600061093312, 60005279058, 60015222593, 60005278811 & 60005278365 which is Ex. DW4/A (colly).
(iv). DW5 Sh. Ajay Kumar Ojha. He submitted that the summoned documents ie. Notice dated 09.01.1989 and notice dated 11.07.2002 have been weeded out. He has produced the certified copy of letter no. 481 dated 18.03.2015 which is Ex. DW5/A and also brought the summoned record pertaining to receipt dated 11.09.2002 and the same is Ex.DW5/B.
(v). DW6 Mahinder Singh. He has produced the dealer profile of Jagdish Enterprises for the assessment year 201213 and 201314, respectively which are s Ex. DW6/A and DW6/B and copy of application for cancellation of registration under Delhi Value Added Tax Act which is Ex. DW6/C and Ex. DW6/D. As the above said documents were computer generated documents and the documents were deexhibited as Mark A to Mark D.
(vi). DW7 Sumit Kumar. He has brought the certified copy of the summoned record ie. statement of account of Jagdish Enterprises w.e.f 01.05.2013 to 23.05.2013 which is Ex. DW7/A (colly).
(vii). DW8 Sh. S. Rajaganapathy. He has produced the certified copy of Income Tax return filed by Sh. Suresh Kumar for the assessment year 201112. 201213 alongwith covering letter dated 01.03.2019 which is Ex. DW8/A and his official identity card which is Ex. DW8/B.
8. I have perused the entire case file and heard the arguments from the ld. Counsels for the parties. I have also gone through the written CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 10 of 16 submissions filed by the parties. On the basis of material on record and after appreciating the arguments of the counsel for the parties, my issue wise finding is as under:
9. IssueWise Findings: Issues No.1, Issue no 06, Issue no. 07 and Issue No. 08
1. Whether the plaintiff is entitled to a decree of possession of the suit property?OPP
6. Whether the plaintiff has no locus standi to file the present suit? OPD
7. Whether the suit is liable to be dismissed for misjoinder and non joinder of necessary parties?OPD
8. Whether the suit is liable to be dismissed for want of cause of action and for suppression of material facts?OPD 9.1. These issues have been taken up together being connected and can be disposed of through common discussion. The plaintiff has filed the present suit seeking possession of the suit shop alongwith other consequential relief claiming that the defendant is tenant in the suit shop at the rate of rent of Rs. 6000/ per month. The defendant mainly took the stand that the plaintiff is neither the owner nor the landlord of the suit shop and further the defendant is not the tenant in the suit shop and father of the defendant Sh. Suresh Kumar is in actual possession of the suit shop. In CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 11 of 16 view of the defence taken by the defendant the plaintiff was required to prove that he is the owner/landlord of the suit shop and defendant is the tenant in the suit shop. In order to prove the fact that the plaintiff is the owner/landlord, the plaintiff was required to prove on record some document to show that he is the owner of the suit shop or he would have produced some rent receipts etc to show that defendant is the tenant in the suit shop. Perusal of the evidence led by the plaintiff/documents produced by the plaintiff/the witnesses examined by the plaintiff would reveal that plaintiff has failed to prove even a single document on record to show that he is the owner/landlord of the suit shop. The plaintiff has produced documents Ex PW1/1 (colly) which are the house tax receipts of the House No. WZ20B, Village Naraina, issued in the name of Sh. Bhagwana/late grand father of the plaintiff. The filing of house tax receipts in name of late grandfather of plaintiff raises doubt about the claim of plaintiff that he is sole owner of suit shop.
The plaint filed by the plaintiff, in the opinion of the Court is very vague in nature because the plaintiff has neither mentioned the date of death of his grand father, nor the date of death of his father Sh. Beg Ram and the plaintiff has also not mentioned, date, month/year of the oral/mutual agreements regarding the alleged division of the property of which suit shop is a part. The plaintiff further failed to prove any document on record to show that his late grand father Bhagwana or thereafter his late father Sh. Beg Ram were the owners of the property of which suit shop is a part. 9.2 The case of the plaintiff is vague in nature because the plaintiff has not mentioned as to when the defendant was inducted in the suit shop or by CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 12 of 16 whom, meaning thereby whether the defendant was inducted by his late grandfather or his late father or by the plaintiff himself. The plaintiff has further failed to mention as to what was the initial rate of rent and as to when the rate of rent was increased and what was the amount of rent increased. The plaintiff vaguely stated it is an old and oral tenancy from month to month and monthly rent of the suit shop was Rs. 6000/ on October, 2012 and since November, 2012 the defendant is in arrears of rent. The plaintiff has not produced any document on record to the effect that the defendant has paid the rent prior to October, 2012. The plaintiff has not produced any rent receipt issued to the defendant or any other document produced on record like his ITRs etc to show that rent was ever received from the defendant.
9.3 During arguments, counsel for the plaintiff mainly relief upon document Ex. PW3/A which is a dealer statementcum Verification report by VAT Inspector and statement of dealer to prove that the defendant is the proprietor of M/s Jagdish Enterprises. However, the said document Ex. PW3/A is of no use to the case of the plaintiff because the said document is dated 18.10.2012, where the present suit has been filed in the Court on 29.05.2014 and moreover, the defendant has produced on record the document Ex. PW6/D which is his application for cancellation of registration under Delhi VAT Act, 2004 which shows that the defendant has sought cancellation of his registration under Delhi VAT Act, 2004 on 18.10.2013 i.e. prior to the filing of the present suit.
9.4 The counsel for the plaintiff during arguments drawn attention of the Court towards cross examination of plaintiff/PW1 conducted on 30.11.2015 CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 13 of 16 and stated that in view of section 116 of Indian Evidence Act, certain questions asked by the counsel for defendant were disallowed by the Ld. Predecessor of the Court. I have gone through the entire cross examination of PW1 as well as questions disallowed by My Ld. Predecessor. In the present case, as noted above the defendant has disputed the ownership/landlordhip of the plaintiff as well as his tenancy in the suit shop. In view of the stand taken by the defendant and considering the language of Section 116 of the Indian Evidence Act, this Court is of the considered opinion that Section 116 of the Indian Evidence Act is not applicable to the facts and circumstances of the present case because Section 116 Indian Evidence Act becomes applicable only when there is admitted landlord tenant relationship between the parties.
9.5 In view of these facts and reasons, it can be said that the case of the plaintiff is very vague and plaintiff has miserably failed to prove the fact that he is the owner/landlord of the suit shop and the fact that the defendant is the tenant of the suit shop. In view of the defence taken by the defendant, the plaintiff was required either to implead/substitute father of the defendant in the present case or he was required to produce some cogent evidence to prove that there is landlord tenant relationship between the plaintiff and the defendant. However, the plaintiff has failed to take either of the steps. 9.6 Consequently, these issues are decided in favour of the defendant and against the plaintiff.
10. Now, I shall take up the following issues:
Issue No. 2 to 05 and issue no. 092. Whether the plaintiff is entitled to a decree for recovery of Rs.CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 14 of 16
1,15,733/ toads arrears of rent and the electricity charges ? OPP
3. Whether the plaintiff is entitled to damages and mesne profits and electricity charges from 16.02.2014 till the date of filing of the present suit? OPP
4. Whether the plaintiff is entitled to preliminary decree for future damages and mesne profits @ 7000/ per month and electricity charges @ Rs. 1000/ or such other sum as determined on enquiry?OPP
5. Whether the plaintiff is entitled to pendente lite and future interest on the arrears of rent and mesne profits @ 24% per annum and costs of the suit.?OPP
9. Whether the suit is liable to be dismissed for want of the correct site plan?OPD The issue no. 02 to 05 are the issues pertaining to the consequential relief claimed by the plaintiff which were dependent on the finding of issue no. 01. The issue no. 01 has already been decided against the plaintiff and it has been held that plaintiff is not entitled to the decree of the possession of the suit shop. In view of the same and considering the fact that the plaintiff has failed to prove landlord tenant relationship between the parties, the issued no. 02 to 05 are decided in favour of the defendant and against the plaintiff. Since the main issues have already been decided against the CS No. 57344/2016 Ashok Kumar Vs. Arvind Kumar Page 15 of 16 plaintiff, there is no purpose in discussing the issue no. 09 in detail as it will be wastage of precious judicial time. This issue was not pressed by the counsel for the defendant during final arguments. Moreover, no specific evidence has been led by the defendant to prove that the site plan is incorrect. In view of the same, the issue no. 09 is decided in favour of the plaintiff and against the defendant.
Relief :
11. In view of the aforesaid discussion, the present suit filed by the plaintiff is dismissed.
12. Parties to bear their own costs.
13. Decreesheet be prepared accordingly.
14. File be consigned to record room after due compliance.
[DHEERAJ MITTAL] Announced in the open court ARC/ACJ/CCJ on 18.01.2020 New Delhi Distt, PHC, Delhi Digitally signed by DHEERAJ MITTAL DHEERAJ Date:
MITTAL 2020.01.18
16:17:44
+0630
CS No. 57344/2016
Ashok Kumar Vs. Arvind Kumar Page 16 of 16