Delhi District Court
Ved Prakash vs V.P. Tandon on 12 October, 2018
Page no. 1 of 27
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, JUDGE SMALL CAUSE
COURTCUMADDITIONAL SENIOR CIVIL JUDGECUM GUARDIAN
JUDGE, SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW
DELHI
CS No: 51388/16
IN THE MATTER OF :
1.VED PRAKASH S/O LATE SH. RAMESHWAR LAL R/O 138B, ZAMRUDPUR NEW DELHI110048
2. SH. SUKHPAL S/O LATE SH. RAMESHWAR LAL R/O H.NO.10, ZAMRUDPUR NEW DELHI110048 ......PLAINTIFFS VERSUS V.P. TANDON S/O SH. B.L. TANDON R/O B233, GREATER KAILASH1 NEW DELHI110048 ALSO AT:
1E, VILLAGE ZAMRUDPUR, NEW DELHI110048 ALSO AT:
1D, VILLAGE ZAMRUDPUR NEW DELHI110048 .....DEFENDANT CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 2 of 27 Date of institution : 07.10.2014 Reserved for Judgment : 20.09.2018 Date of decision : 12.10.2018 JUDGMENT
1. Vide this judgment, I shall dispose off the present suit for possession and recovery of damages/mesne profit filed by plaintiffs Sh. Ved Prakash and Sh. Sukhpal (hereinafter called plaintiffs) against defendant Sh. V.P. Tandon (hereinafter called defendant) seeking the following reliefs:
a) decree of recovery of possession of the suit/tenanted premises i.e. 1E, Village Zamrudpur, New Delhi110048 as specifically shown in the site plan and marked red may kindly be passed in favour of the plaintiffs and against the defendant;
b) decree of recovery of dues/arrears of rent of Rs.1,40,000/ w.e.f. January 2013 to August 2014 besides outstanding electricity and water charges may kindly be passed in favour of the plaintiffs and against the defendant;
c) decree of damages/mesne profits @ 1,000/ per day w.e.f 01.10.2014 till the vacating and handing over the peaceful and vacant possession of the suit/tenanted property may be passed in favour of the plaintiffs and against the defendant;
d) restraining the defendant, his associates, agents, relatives etc. from selling, subletting, mortgaging, alienating, creating third party interest in respect of suit/tenanted premises bearing no.1E, Village Zamrudpur, CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 3 of 27 New Delhi110048;
2. The facts of the case as per the plaintiff are as follows:
2.1. It is alleged that the plaintiffs are the absolute owners of the property i.e. 1E, Village Zamrudpur, New Delhi110048.
2.2. It is alleged that aforesaid property was purchased by the plaintiffs and at the time of the purchase, the defendant was occupying the said premises being the tenant of its erstwhile owner.
2.3. It is alleged that the aforesaid property was let out to the defendant by S. Tarlochan Singh Mehta who sold the property to Smt. Surinder Kaur and finally the tenanted property was purchased by the plaintiffs and thus, the plaintiffs stepped into the shoes of the erstwhile owner/landlord and the defendant also recognized the plaintiffs as his landlord in respect of the aforesaid premises.
2.4. It is alleged that the defendant continued making payment of rent till November, 2007 but miserably failed to tender rent w.e.f December, 2007 and therefore, the plaintiffs approached the CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 4 of 27 defendant and demanded rent from him.
2.5. It is alleged that the defendant paid the rent to the plaintiffs @ Rs. 7,000/ per month till December, 2012 and thereafter, the defendant miserably failed to pay the rent thereafter.
2.6. It is alleged that the plaintiffs therefore, served a legal/demand notice dated 19.08.2014 through his counsel Shri Shashi Shanker, Advocate whereby the defendant was called upon to vacate the above said leased premises and handover the peaceful and vacant possession of the premises to the plaintiffs and clear the entire outstanding dues/arrears of rent of Rs.1,40,000/ w.e.f January 2013 till August 2014 besides outstanding electricity and water charges. It is alleged that the defendant was also called upon to pay Rs.1,000/ per day as damages/mesne profits w.e.f 01.10.2014 till handing over the peaceful vacant physical possession of the premises.
2.7. It is alleged that the defendant neither vacated the tenanted premises nor paid the arrears of rent and damages to the plaintiffs nor gave any reply to the legal demand notice of the plaintiffs and CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 5 of 27 hence the present suit.
3. In the written statement the defendant took the following defence: 3.1. It is alleged that the case in hand is expressly hit by Section 50 of Delhi Rent Control Act, 1958 as the present admitted tenancy involved is specifically covered under the relevant provisions of DRC Act. It is averred that "Letter of Atonement" i.e. intimation regarding acquisition of fresh title has never been tendered to the defendant herein.
3.2. It is alleged that the present tenancy in respect of suit property i.e. 1E, Zamrudpur, New Delhi110048 was initiated around span of 40 years back at the initial rent of Rs. 200/ exclusive of electricity and water charges. Most pertinent to point out here is that the said tenancy was candidly commercial in nature and the defendant herein has been using the premises as a Godown right from the day one of the tenancy for earning his bread and butter and meeting his day to day needs and necessities. It is alleged that extremely worthwhile to mention here that the original landlord of the suit property was one CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 6 of 27 Smt. Krishan Kaur and the defendant herein enjoyed continuous/ uninterrupted possession of the same in the capacity of bonafide tenant at a monthly rent of Rs. 200/. However, the said Krishan Kaur sold the ownership rights of the suit property on "as it is where it is basis" to one Smt. Surinder Kaur and consequent thereto all the rights, title and interest were duly transferred to Smt. Surinder Kaur. It is alleged that again as a bonafide and a law abiding citizen, the defendant herein complied with all his lawful duties and also paid monthly rent to the landlord as and when it accrued in order to safeguard and protect his tenancy as envisaged under DRC Act.
3.3. It is alleged that the plaintiffs herein is not at all owners of the property in question as they are not in possession of even a single document regarding their title of the suit property. 3.4. It is alleged that somewhere in the year January 2003 defendant herein received a letter from Smt. Surinder Kaur thereby informing the defendant herein that she has sold the property to one Ved Prakash and Y.S. Verma, and further informed regarding the CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 7 of 27 transfer of title with respect to the suit property. However, as a vigilant tenant being confused and flabbergasted by such undated and apparently forged information, the defendant herein immediately wrote reply dated 24.03.2003 to all the three people i.e. Smt. Surinder Kaur, Sh. Ved Prakash and Sh. Y.S. Verma thereby requesting them to furnish their title deeds and substantiating their ownership rights. However, more than a decade has lapsed after such unfortunate incident but till date no reply of any nature has been given by those 3 persons including plaintiff no.1 in the present litigation.
3.5. It is alleged that the defendant requested all the above 3 persons number of times to show their original title deeds and documents but in vain as none of them is interested in showing their true title. The defendant herein also wrote a letter dated 15.10.2003 but again in vain and no fruitful purpose has been sorted out till date. 3.6. It is alleged that the plaintiffs herein have not furnished any copy of receipt ever issued by them against the alleged payment of rent by the defendant in support of their claim.
CS No: 51388/16 (Sushil Anuj Tyagi)
Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
12.10.2018
Page no. 8 of 27
3.7. It is alleged that it does not appeal to logic that there is not even a single receipt in possession of the plaintiffs in their support and mere false verbal declaration is not sufficient for substantiating their claim.
3.8. It is alleged that the plaintiffs are making a nefarious attempt to mislead this Hon'ble Court as the entire story of Rs.7,000/ as rent is absolutely cooked up and a planted story in order to mislead and misrepresent this Hon'ble Court and trying to procure an unworthy and illegitimate reliefs.
4. In replication, the plaintiff reiterated and reaffirmed the contents and further pleaded as follows: 4.1. It is alleged that the defendant never ever attempted to tender rent in respect of the suit premises to the plaintiffs. It is alleged that if the defendant was not aware as who was the landlord of the tenanted premises, then he must have deposited the rent in the court of law, which he has failed to tender and the same was done just in order to grab the property of the plaintiffs. It is alleged that CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 9 of 27 after taking the possession of the suit premises by the plaintiffs, the defendant has in fact recognized the plaintiffs as landlords and also tendered rent till December 2012 @ Rs.7,000/ per month but malafidely stopped making payment of rent on false and frivolous grounds since January 2013 and therefore, a legal/demand notice was served to the defendant on 19.08.2014.
4.2. It is alleged that the defendant is well aware of the ownership of the suit premises and even the letters were written by the erstwhile owners but the defendant is showing ignorance regarding the ownership of the suit premises which is currently owned by the plaintiffs herein by way of registered documents. It is alleged that the ownership documents were not filed solely for the reason that the plaintiffs were under impression that the defendant shall not at least dispute the ownership of the plaintiffs regarding the suit premises, however, since the same has been disputed by the defendant, the entire chain of ownership documents are being placed on record. It is alleged that plaintiffs have entered into the shoes of the landlord after purchasing the suit premises and the ownership is not required CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 10 of 27 to be proved but just for clarity, the entire set of ownership documents is being filed by the plaintiffs.
4.3. It is alleged that as far as the ownership is concerned, the same was never disputed as it is admitted that the defendant wrote one letter in the year 2003 to one of the plaintiffs and also demanded the ownership documents which itself shows that the change of hands of ownership was in the knowledge of the defendant and only then he tendered rent in respect of the suit property to the plaintiffs but just for taking frivolous objection, the aforesaid contention has been raised by the defendant in order to delay the present proceedings.
4.4. It is alleged that the rent of the tenanted property cannot be Rs.200/ or Rs.242/ as alleged by the defendant. It is alleged that on one hand the defendant submits that the property is a commercial property and in the locality of SouthEast, Delhi and on the other hand claims that the last rent paid was less than Rs.3,500/ which is not only contradictory to his own act/conduct but the same is arbitrary, mischievous and malafide in nature.
CS No: 51388/16 (Sushil Anuj Tyagi)
Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
12.10.2018
Page no. 11 of 27
4.5. It is alleged that the defendant has admitted the fact that he is in possession of the tenanted premises and has not been tendering rent to anyone including the plaintiffs herein, despite being the tenant in the said premises and never attempted to even deposit the rent in the court of law. It is alleged that now taking undue benefit of a forged rent receipt the defendant claims that he was making payment of rent @ Rs.400/ of the suit premises which is neither tenable nor maintainable in the eyes of law.
ISSUES
5. On the basis of pleadings of parties, following issues were framed by the Ld. Predecessor of this Court, vide order dated 02.02.2015: Sl. Issues Onus to No. prove 1 Whether the present suit has been instituted without any OPD cause of action?
2 Whether the present suit is barred by Section 50 of Delhi OPD Rent Control Act, 1958?
3 Whether the present suit is barred by Section 41(h) of the OPD CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 12 of 27 Specific Relief Act? 4 Whether the plaintiffs have approached this Court with clean OPD hands and suppressed material facts? 5 Whether the plaintiffs are not the landlords of the tenanted OPD premises? 6 Whether the plaintiffs are entitled to the decree of recovery OPP
of possession of the tenanted premises, as prayed for? 7 Whether the plaintiffs are entitled to recover arrears of rent OPP of Rs. 1,40,000/, as prayed for?
8 Whether the plaintiffs are entitled to recover outstanding OPP electricity and water charges, as prayed for? 9 Whether the plaintiffs are entitled to recover mesne profits, OPP for which period and at what rate?
10 Whether the plaintiffs are entitled to permanent injunction as OPP prayed for?
11 Relief.
6. Matter was then listed for Plaintiff Evidence. PLAINTIFF EVIDENCE
7. Sh. Ved Prakash, plaintiff appeared as PW1, who had filed his evidence by way of Affidavit Ex.PW1/1 and relied upon following CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 13 of 27 documents:
Sl. Exhibits Documents.
no
1 Ex.PW1/A Site plan
2 Ex.PW1/B Electricity bill
(OSR)
3 Ex.PW1/C Educational certificates running into 3 pages
(Colly) (OSR)
4 Ex.PW1/D Training certificate dated 21.03.2013 and four receipts
(Colly) (OSR)
5 Ex.PW1/E Office copy of legal notice dated 19.08.2014 running into
3 pages
6 Ex.PW1/F to Postal receipts
Ex.PW1/H
7 Mark PW1/I to Computer printouts of the postal receipt available at the
Mark PW1/K website of India Posts
8 Ex.PW1/L (OSR) Sale deed dated 16.04.1999 running into 6 pages
9 Ex.PW1/M Will dated 30.12.2012 running into 2 pages
10 Ex.PW1/N GPA dated 30.12.2002 running into 5 pages
(OSR)
11 Ex.PW1/O Copy of GPA dated nil, 2003
(OSR)
12 Ex.PW1/P Copy of Will dated 26.08.2003 running into 2 pages
(OSR)
13 Ex.PW1/Q Will dated 26.08.2003 running into 2 pages
(OSR)
14 Ex.PW/R (OSR) Will dated 22.10.2003 running into 2 pages 15 Ex.PW1/S GPA dated 22.10.2003 running into 5 pages (OSR) CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 14 of 27
8. The plaintiff examined other witness namely Sh. Vishal Choudhary as PW2.
9. PW1 to PW2 were cross examined by the counsel for the defendant and thereafter the Plaintiff Evidence was closed vide Order dated 13.11.2017. Matter was then listed for Defendant Evidence. DEFENDANT EVIDENCE
10. Sh. V.P. Tandon, defendant appeared as DW1, who had filed the evidence by way of Affidavit Ex.DW1/A and relied upon a rent receipt dated 13.07.1981 which is already marked as Mark PW1/D1.
11. DW1 was cross examined by the counsel for the plaintiff and thereafter the Defendant Evidence was closed vide Order dated 05.03.2018. Matter was then listed for final arguments. FINAL ARGUMENTS
12. I have heard the final arguments from both the sides and have meticulously perused the judicial record.
CS No: 51388/16 (Sushil Anuj Tyagi)
Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
12.10.2018
Page no. 15 of 27
FINDINGS
13. My issuewise findings are as follows:
Issue No. 1: Whether the present suit has been instituted without any cause of action? OPD
14. The onus to prove this issue lies upon defendants. The cause of action means a bundle of facts which taken with the law applicable gives the plaintiff a right to relief against the defendant. It includes some act done by the defendant on which it is founded.
15. A cause of action is a bundle of facts which are required to be proved for obtaining relief. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. (Mayur (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828.)
16. In Rajasthan High Court Advocates' Association v. Union of India, 2001(2) SCC 294: AIR 2001 SC 416, it is held as:
"The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion of the action. In the wider sense, CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 16 of 27 it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises."
17. The plaintiffs have claimed that they are the landlords of the suit property and defendant being a tenant has stopped paying rent and hence the present suit has been filed. Whether the plaintiffs are able to prove its case or not, is a different question but the claim cannot be rejected on the basis of lack of cause of action. The defendant has failed to show as to how the plaint does not disclose a cause of action. Thus, this issue is decided against the defendant and in favour of plaintiffs. Issue no. 2 : Whether the present suit is barred by Section 50 of Delhi Rent Control Act, 1958? OPD AND Issue no. 3: Whether the present suit is barred by Section 41(h) of the Specific Relief Act? OPD
18. The onus to prove these issues lies upon defendant. The defendant alleges that the rent of the suit property is below Rs. 3500/ and therefore, CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 17 of 27 the suit falls within the ambit of Delhi Rent Control Act and the jurisdiction of this court is barred. The defendant also alleges that the suit is also barred by Section 41 (h) of the Specific Relief Act as there lies an equally efficacious remedy in some other forum. To discharge the onus, the defendant has examined himself as DW1 and given his evidence by way of affidavit Ex.DW1/A and relied upon one rent receipt dated 13.07.1991 which is mark PW1/D1. No other witness or document has been proved by the defendant in support of his averments.
19. In his affidavit, DW1 states that the tenancy with respect to the suit property started 40 years ago at a rent of Rs. 200/ excluding the electricity and water charges and the same was commercial in nature. It is also stated that the land lord of the suit property was Smt. Krishan Kaur initially and later it was sold to Smt. Surinder Kaur on "as it is where it is basis" and consequent thereto all rights, title or interest in the suit property were transferred to Smt. Surinder Kaur. DW1 states that initial rent was Rs. 200/ which was later on raised to Rs. 242/ per month exclusive of electricity and water charges and the same has been duly paid to Smt. Surender Kaur lastly in the month of January 2003. It is further stated that CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 18 of 27 in January 2003 DW1 received a letter allegedly sent by Smt. Surender Kaur informing that the suit property has been sold to plaintiff no. 1 and Mr. Y. S. Verma, due to which DW1 got confused and sent a reply dated 24.03.2003 to Smt. Surender Kaur, plaintiff no. 1 and Mr. Y. S. Verma requesting them to furnish the title deeds with regard to their ownership rights over the suit property but till date no reply has been given by any of them. It is further alleged that DW1 did not make a payment of rent thereafter. It is further stated that the plaintiffs are not the owners of the suit property as they have not filed any documents regarding title to prove their ownership over the suit property.
20. During cross examination, DW1 admitted that he has paid rent to the erstwhile owner Smt. Surender Kaur only till January 2003. DW1 also admits that he did not make any efforts to pay any rent to anybody after January 2003 and that no petition has been filed for deposition of rent in respect to the suit property in any court of law. DW1 also could not tell the dimensions of the suit property though he denied the suggestion that the suit property is locked for the last 1015 years and that he had not gone to the suit property. DW1 could not even tell the average amount of the CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 19 of 27 electricity bill with respect to the suit property nor he could tell the amount of electricity bill paid for the last time. DW1 also admitted that he has not placed on record any document or bill to show that the suit property is being used as godown by him.
21. The defendant has only relied upon one rent receipt dated 13.07.1991 marked as Mark PW1/D1 which was put by the defendant to PW1 during the cross examination, which has neither being admitted nor denied. The said rent receipt has been just put to the PW1 during cross examination but nothing has been mentioned in the affidavit of DW1 regarding the same. There is no even a single whisper in the affidavit about the said rent receipt - whether the same has been issued by the landlord or not has not been established. It is not even stated that the rent receipt has been signed by the landlord. If the same was to be relied upon by the defendant then the burden was upon the defendant to prove the same. The defendant has not examined the landlord who has issued the said receipt. It is clear that the alleged rent receipt mark PW1/D1 is not proved according to law. No other rent receipt etc has been proved by the defendant.
CS No: 51388/16 (Sushil Anuj Tyagi)
Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
12.10.2018
Page no. 20 of 27
22. Record reflects that one application was filed by the defendant under Order 8 Rule 1 r/w Section 151 CPC for filing some additional documents i.e. rent receipts, money orders etc but the same was dismissed vide order dated 04.01.2017 of the Ld. Predecessor of this court. Thus, no rent receipt whatsoever has been proved by the defendant to prove that the rent was below 3,500/ qua the suit property. He has not even examined the previous landlords to established his contention. Merely putting a document to the plaintiff witness during cross examination which has not been admitted, cannot be deemed as proved.
23. Section 9 of the CPC provides that the plaintiff can file any suit before the civil court unless it is expressly or impliedly barred. The burden lies upon the person who contends that the jurisdiction of civil court is ousted. In the present case, it is the defendant who has contended that the present case is beyond the jurisdiction of civil court and thus the burden to prove the same lies upon his shoulder. From the totality of the evidence bring forth by the defendant, it cannot be conclusively said that the jurisdiction of civil court is barred and the case falls within the jurisdiction of Rent Controller as the defendant has failed to establish that the rent was CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 21 of 27 below 3,500/. Thus, these issue no. 2 & 3 are decided against the defendant.
Issue no. 4: Whether the plaintiffs have approached this Court with unclean hands and suppressed material facts? OPD
24. The onus to prove this issue lies upon defendant. No such evidence has been led by the defendant to as to how the plaintiffs have approached the court with unclean hands. It is also not proved which material facts have been concealed by the plaintiffs which disentitle them from relief. This issue is also decided against the defendant. Issue no. 5: Whether the plaintiffs are not the landlords of the tenanted premises? OPD
25. The onus to prove this issue lies upon defendant. The defendant alleges that the plaintiffs are not the owners of the suit property as they do not have any single document with regard to the ownership of the suit property. It is not denied by the defendant that he came into the suit property as tenant of Smt. Krishan Kaur. It is the admitted case that Smt. Krishna Kaur has sold the suit property to Smt. Surender Kaur to whom the defendant has been paying the rent till January 2003. The defendant also CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 22 of 27 admits that he has received a letter in January 2003 which was sent by Smt. Surender Kaur wherein she has informed that she has sold the suit property to plaintiff no. 1 and Mr. Y. S. Verma and the same was replied by the defendant vide letter dated 24.03.2003. Thus, the landlord tenant relationship has not been denied by the defendant.
26. The plaintiff has relied upon the ownership documents from Ex.PW1/L (OSR) to Ex.PW1/S (OSR) to prove the chain of documents showing the transfer of ownership in the favour of the plaintiffs. Though, for the sake of arguments even it is assumed that the plaintiffs are not the owners but for the purpose of this case, it cannot be said that they are not the landlords as admittedly Smt. Surender Kaur was the landlord and it is not in the dispute that she has written a letter informing the defendant about the transfer of the suit property to the plaintiff no. 1 and Mr. Y. S. Verma. If the defendant wanted to refute that the land lord Smt. Surender Kaur has not transferred the suit property or that she has not written any letter to the defendant, the onus was upon the defendant to prove the same by examining Smt. Surender Kaur, which he has not done in the present case. Thus, it is clear that defendant has failed to prove that CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 23 of 27 plaintiffs are not the landlords of the suit property. Issue no. 6: Whether the plaintiffs are entitled to the decree of recovery of possession of the tenanted premises, as prayed for? OPP
27. The onus to prove this issue lies upon plaintiffs. It is not denied that the defendant is the tenant in the suit property and now the plaintiffs are the transferees of the suit property.
28. The plaintiffs have proved the ownership documents Ex.PW1/L (OSR) to EX.PW1/S (OSR) which shows the chain of documents vide which the property has purportedly changed hands.
29. It is also not disputed by the defendant that he was informed by the erstwhile owner Smt. Surender Kaur regarding the transfer of ownership to suit property by plaintiff no. 1 ans Shri Y. S. Verma. This court is of the view that the plaintiffs being the apparent rightful owners/landlords are entitled to the possession of the suit property. They are able to prove their case on the basis of prepondrance of probabilities. This issue no. 6 is decided in favour of the plaintiffs.
Issue no. 7: Whether the plaintiffs are entitled to recover arrears
CS No: 51388/16 (Sushil Anuj Tyagi)
Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
12.10.2018
Page no. 24 of 27
of rent of Rs.1,40,000/, as prayed for? OPP
30. The onus to prove this issue lies upon plaintiffs. The plaintiffs have alleged that the rent of the suit property was Rs. 7,000/ per month which the defendant has paid till January 2013. The plaintiff has not filed any document to show that the rent was fixed at Rs. 7000/ per month or that he has ever received the rent of Rs. 7,000/ from the defendant. No income tax return or rent receipt has been produced or proved by the plaintiff to substantiate his averments regarding receiving of rent @ Rs. 7,000/ per month. However, since it is held that plaintiffs are the landlords of the suit property and admittedly, the defendant has not paid the rent at least since January 2013, thus considering the fact that the suit property is commercial in nature and it situates in South East Delhi, the rent of he suit property cannot be presumed to be less than 5,000/ per month. Thus, this issue is decided in favour of the plaintiffs and they are held to be entitled to rent of Rs. 5,000/ per month qua the suit property from the defendant from January 2013 till filing of suit.
Issue no. 8: Whether the plaintiffs are entitled to recover outstanding electricity and water charges as prayed for? OPP CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018 Page no. 25 of 27
31. The onus to prove this issue lies upon plaintiffs. No evidence has been led by the plaintiff to show what is the outstanding electricity and water charges upon the suit property. No witness from the electricity or water department has been summoned or examined to prove the outstanding charges. Hence, this issue is decided against the plaintiff. Issue no. 9: Whether the plaintiffs are entitled to recover mesne profits, for which period and at what rate? OPP
32. The onus to prove this issue lies upon plaintiffs. Since it has been decided in issue no. 6 that the plaintiffs are entitled to the decree of recovery of possession of the tenanted premises from the defendant, this issue is consequently decided in favour of the plaintiffs. This court deems it fit to assess the mesne profits at the rate of Rs. 5,000/ per month from the date of filing of the suit till the handing over of possession of the suit property, considering the locality and commercial nature of the suit property and also considering the admission of plaintiff during cross examination that the rate of rent of shops of similar nature in same locality ranges from 5,000/ to Rs. 7,000/. This issue is accordingly decided in favour of the plaintiffs.
CS No: 51388/16 (Sushil Anuj Tyagi)
Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
12.10.2018
Page no. 26 of 27
Issue no. 10: Whether the plaintiffs are entitled to permanent
injunction as prayed for? OPP
33. The onus to prove this issue lies upon plaintiffs. The plaintiffs have sought the relief of injunction to restrain the defendant, his associates etc from selling /subletting/ mortgaging/ alienating or creating third party interest in the suit property. The prima facie case and the balance of convenience lie in favour of the plaintiffs as the defendant is admittedly a tenant and plaintiffs are the landlords. The plaintiffs may suffer irreparable loss if the injunction is not granted in his favour. Thus, this issue is decided in favour of the plaintiffs. The defendant, his associates etc are restrained from selling /subletting/ mortgaging/ alienating or creating third party interest in the suit property RELIEF
34. In the light of the conclusions on the aforementioned issues, the suit filed by the plaintiffs against the defendant is decreed in following terms:
34.1. Decree of possession is passed qua the suit property in favour of the plaintiffs against the defendant.
CS No: 51388/16 (Sushil Anuj Tyagi)
Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
12.10.2018
Page no. 27 of 27
34.2. Decree for recovery of monthly rent at the rate of Rs. 5,000/ per month is passed in favour of the plaintiffs against the defendant for the period January 2013 till the filing of the suit.
34.3. Decree for relief of mesne profit is passed in favour of the plaintiffs against the defendant at the rate of 5,000/ per month from the date of filing of the suit till the handing over of possession of the suit property by the defendant.
35. Costs of the suit are also awarded in favour of the plaintiffs.
36. Decree sheet be prepared accordingly.
37. File be consigned to Record Room, after due compliance.
Pronounced in open Court (Sushil Anuj Tyagi) today on 12th October, 2018 JSCCcumASCJcumGJ South East, Saket Courts 12.10.2018 (r) CS No: 51388/16 (Sushil Anuj Tyagi) Ved Prakash & Anr vs. V.P. Tandon JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 12.10.2018