Delhi District Court
Smt. Sangita Kedia vs M/S Sadhna Aushadhalaya on 1 August, 2011
IN THE COURT OF RAKESH KUMARIII, ACJ/ARC(WEST),
TIS HAZARI, DELHI
Suit No: 556/2007
Date of Institution : 26.09.2007
Date of Judgment : 01.08.2011
In the matter of :
Smt. Sangita Kedia
W/o Sh. Rajinder Kedia
R/o 44, Todarmal Road,
Bengali Market,
New Delhi110001. ... Plaintiff
VERSUS
1. M/s Sadhna Aushadhalaya
A Partnership firm
Through its partner Sh. P.C. Ghosh,
206, Bidhan Sarni,
Calcutta700006.
Second Address:
M/s Sadhna Aushadhalaya
185455, Chandni Chowk,
Delhi110006.
2. Sh. P.C. Ghosh
Partner M/s Sadhna Aushadhalaya
206, Bidhan Sarni,
Calcutta700006. ... Defendants
SUIT NO. 556/2007 PAGE 1 OF 16
SUIR FOR POSSESSION AND RECOVERY OF RS.85,000/
J U D G M E N T
1. By filing the present suit, recovery of Rs. 85,000/ as arrears of rent/damages prayed for on the ground that plaintiff is a landlady and owner of the portion of first floor, 2nd floor and 3rd floor of the property bearing No. 185455, Chandni Chowk, Delhi110006 and Defendants were inducted as a tenant in respect of portion of first floor, 2nd floor and 3rd floor in the property captioned above shown in red lines in the site plan for monthly rent of Rs.5000/ excluding electricity and water charges. Tenancy of the Defendant was monthly and commenced from 1st day of every English calendar month and ended on last day of same month of English calendar. The tenancy of the Defendant were duly terminated by the plaintiff by sending/issuing legal notice dated 24.05.2007 through registered AD which was served upon the Defendant. Despite that tenanted portion has not been vacated and possession was not handed over to the plaintiff on or till 30.06.2007.. Hence, possession of the Defendant in the suit premises has became illegal, unauthorise and without any right and authority. The damages also prayed for @ rs.50,000/ per month since 01.07.2007 for the use and occupation of suit premises. It is further submitted that after determination of the tenancy, rent has been accepted by the plaintiff towards part payment of damages of illegal and unauthorise use and SUIT NO. 556/2007 PAGE 2 OF 16 occupation of the suit premises. Lastly, prayer for decree of possession of the property captioned above, recovery of Rs.85,000/ and mesne profits of Rs.50,000/ per month from the date of filing of the suit till handing over vacation of possession of the suit premises are made.
2. In reply by filing WS, dismissal of the suit has been prayed on the ground that the present suit is not maintainable being barred by section 50 of DRC Act, barred under order 2 rule 2 CPC, this court has no jurisdiction being the civil court, liable to be dismissed under order 37 CPC, suit of the plaintiff is also not maintainable being not properly valued and proper court fee affixed. Lastly, the suit of the plaintiff is not maintainable being filed without cause of action and barred for want of permission from the competent authority as property in question is situated in the slum area. In correspondent para2 of reply to para no. 2 of plaint, it is admitted that the defendant was inducted as a tenant in respect of property in question captioned above. However, rate of rent i.e. Rs.5000/ is denied and further denied that tenancy of defendant was never terminated by the plaintiff by way of issuance of notice dated 24.05.2007 in as much as no alleged legal notice was ever served upon the defendant and validity, illegality and service of the same was emphatically denied. It is further replied that plaintiff is under no obligation to pay Rs.50,000/ as damages w.e.f. 01.07.2007 and the present suit has been filed on the basis of cock and bull story and the same is without any cause of action and is liable to be dismissed with heavy costs. They denied all the rest of the paras of the plaint.
SUIT NO. 556/2007 PAGE 3 OF 16
3. Plaintiff filed replication to the written statement of the defendant wherein she reiterated the averments made in the plaint and denied all the contentions of the written statement.
4. Upon pleadings of the parties, following issues were framed on 26.02.2009: (1) Whether plaintiff is entitled for possession of the property bearing No. 185455, Chandni Chowk, Delhi consisting of portion on first floor, on the second floor and the third floor as shown in red lie in site plan ? OPP (2) Whether plaintiff is entitled for recovery of Rs.85,000/ as prayed ?
OPP
(3) Whether plaintiff is entitled for mesne profit, if yes at what rate
and for which period ? OPP
(4) Whether suit is barred by section 50 of DRC Act ? OPD
(5) Whether suit is barred by order 2 rule 2 CPC ? OPD
(6) Whether there is no cause of action in favour of plaintiff and
against the defendant ? OPD
(7) Whether suit is premature for want of permission of competent
authority ? OPD
(8) Relief.
SUIT NO. 556/2007 PAGE 4 OF 16
5. Prior to proceed further, it is relevant to mention here that vide order dated 27.01.2010 Ld. Predecessor of this court disposed of issue no. 7 with the observation that the said issue will be decided alongwith other issues on the ground that the same require leading of evidence. Plaintiff examined only herself. On 02.06.2010, PE has been closed. On the even date, defendant did not wish to lead any evidence, hence was also closed on the same date and the matter was adjourned for arguments on the application under section 15(a)(2) of DRC Act. On 24.07.2010, another application on behalf of defendant moved for review of order dated 27.01.2010 which was dismissed by this court vide order dated 28.03.2011.
6. ISSUE NO. 1
(1) Whether plaintiff is entitled for possession of the property bearing No. 185455, Chandni Chowk, Delhi consisting of portion on first floor, on the second floor and the third floor as shown in red lie in site plan ? OPP Onus to prove the said issue was upon the plaintiff .
To discharge this onus, plaintiff examined herself in which she reproduced the contents of entire plaint and as such proved the documents; rent receipt is SUIT NO. 556/2007 PAGE 5 OF 16 Ex.PW1/1, site plan is Ex.PW1/2, original letters of defendant are Ex.PW1/3 to Ex.PW1/6, letter dated 19.09.07 written to the defendant no. 1 through registered post is Ex.PW1/7 to Ex.PW1/9, plaintiff also proved legal notice dated 24.05.2007 as Ex.PW1/10, original postal receipts are Ex.PW1/11 & Ex.PW1/12, AD card is Ex.PW1/13 and 14 respectively, letter dated 12.10.2007 of defendant is Ex.PW1/15, reply to that letter dated 03.11.2007 is Ex.PW1/17, postal receipt is Ex.PW1/17A, AD is Ex.PW1/18 and copy of notice is Ex.PW1/19 to Ex.PW1/21 and remained firm on the point that she had terminated the tenancy of the defendant vide legal notice dated 24.05.2007 Ex.PW1/10 to Ex.PW1/14 are not forged and fabricated but surprising objection of forged and fabricated document has not been pleaded in the written statement while answering para 4 of the plaint. Even defendant did not lead any evidence in respect of suggestion regarding forged and fabricated documents.
It is specifically deposed by the plaintiff that when the property in question was given / let out to the defendant, it was let out to one P.C. Ghosh who was one of the partner of the defendant no. 1 who has also filed the written statement and verified the plaint. Bare perusal of AD card Ex.PW1/13 address is mentioned as 206, Bidhan Sarni, Calcutta and second address is mentioned as 185455, Chandni Chowk, Delhi110006 no the Ex.PW1/14 and no where in the statement as well as in cross examination, it has been disputed by the defendant that the addresses mentioned in the legal notice dated 24.05.2007, AD card Ex.PW1/13 as well as Ex.PW1/14 are not address of the defendant SUIT NO. 556/2007 PAGE 6 OF 16 and there is presumption under section 27 of General Clauses Act that notice is stated to be served if it has been sent on the proper address through registered AD. Moreover, no contrary evidence has been filed by the Defendant, so I am of the considered view that despite service of the legal notice Ex.PW1/10, defendant failed to hand over vacant possession of the plaintiff and documents cannot be said to be forged and fabricated in absence of any cogent evidence. Moreover despite opportunity AD which is Ex.PW1/14 has not been examined by any expert. It is not out of place to mention here that perusal of the documents Ex.PW1/10 to Ex.PW1/14. It cannot be said served which is exhibited in evidence. Hence, this issue is decided in favour of plaintiff and against Defendants.
7. ISSUE NO.2 (2) Whether plaintiff is entitled for recovery of Rs.85,000/ as prayed ?
OPP Onus to prove the said issue was upon the Plaintiff.
In respect of this issue, plaintiff deposed in his affidavit that he has claimed Rs.85,000/ towards damages for two months for illegal and unauthorise use and occupationof the premises upto 31.08.2007 but did not file any document which shows that plaintiff has suffered this much loss. In SUIT NO. 556/2007 PAGE 7 OF 16 absence of cogent evidence. It cannot be said that the plaintiff has suffered this much of loss as damages in absence of any cogent document, hence this issue is decided in favour of defendant and against the plaintiff. 8. ISSUE No. 3
(3) Whether plaintiff is entitled for mesne profit, if yes at what rate and for which period ? OPP Onus to prove the said issue was upon the Plaintiff.
Keeping in view finding on issue no. 1 wherein plaintiff has proved the legal notice dated 24.05.2007 Ex.PW1/10 and Ex.PW1/3 in which it is admitted by the Defendant rate of rent of Rs.5000/ and paid Rs.20,000/ through DD in respect of arrears of rent w.e.f. September, 2006 to December, 2006 and further, admitted letter dated 29.05.2007 which is Ex.PW1/6 wherein Rs.5000/ was sent in respect of rent for the month of April, May & June, 2007. Further, vide letter date 18.07.2007 Ex.PW1/14, further admitted rate of rent of Rs.5000/ and sent Rs.10,000/ towards arrears of rent for the month of June, August, 2007 and also admitted Ex.PW1/5 wherein Rs.5000/ sent through DD towards rent for the month of September, 2007. So, it cannot be said after termination of the legal notice, Defendant has been continuously in possession legally. It is well observed by Hon'ble Supreme Court of India in SUIT NO. 556/2007 PAGE 8 OF 16 Civil Appeal No. 49124913 of 2011 that every lease on its expiry or a license on its revocation cannot be converted itself into litigation. Unfortunately, our courts are flooded with these cases because there is inherent profit from wrong doors in our system. It is matter of knowledge that domestic servant, gardeners, watchmen, care takers or security men employed in the premises whose status is that of licensee indiscriminately filed suit for injunction not to be disposed off by making all kinds of averments and may be even filing a forged document, and then demand chunk of money for withdrawing the suit. It is happening because it is general impression that even if ultimately unauthorise person is thrown out of premises, the court would not ordinary punish unauthorise person by awarding realistic and actual mesne profit imposing costs or ordering prosecution.
9. It is matter of knowledge that lacs of flats and houses are kept locked for years, particularly in a big cities and metropolitan cities because owners are not certain that even after expiry of lease or license period, houses, flat or apartments would be vacated or not. It takes decades for determination of final controversy and wrong doors are never adequately punished. The pragmatic approach of the court would particularly sold the housing problem of this country. So, I am of the similar considered view that after determination of the tenancy through legal notice dated 24.05.2007 the status of the Defendant is illegal, unauthorise and enjoying the property without paying the actual or market rate of rent to the Plaintiff. Since there is no evidence has been led by the Plaintiff on account of market rate of rent of the tenancy of area and SUIT NO. 556/2007 PAGE 9 OF 16 specific document has been filed towards damages actually suffered to the Plaintiff, hence entitled upto rate which is agreed i.e. Rs.5000/ per month other than rent which is payable. Hence, this issue is decided in favour of Plaintiff and against Defendants.
10. ISSUE No. 4 (4) Whether suit is barred by section 50 of DRC Act ? OPD Onus to prove the said issue was upon the Defendant.
Plaintiff not only in his plaint but also in his affidavit, deposed that rate of rent was Rs.5000/ per month of the suit property and remained firm during cross examination, moreover, in her evidence are exhibited letter of the defendant returned to the plaintiff which is Ex.PW1/3 to Ex.PW1/6 & Ex.PW1/15 despite that no question has been put during cross examination regarding non issuance of above letters to the plaintiff and even did not lead any evidence to rebut the documents and testimony of Plaintiff. It is not out of place to mention here that though in para 2 of the written statement it is denied that the rate of rent of suit premises is not Rs.5000/ but surprisingly did not specifically averted what was the rate of rent. Under these circumstances, I am of the considered view, after considering the documents mentioned above, it is proved by the plaintiff that rate of rent of the suit premises was Rs.5000/, SUIT NO. 556/2007 PAGE 10 OF 16 hence provision of DRC Act is not applicable and this court has very much jurisdiction to entertain the present suit, hence this issue decided in favour of plaintiff and against the defendant.
11. ISSUE No.5 (5) Whether suit is barred by order 2 rule 2 CPC ? OPD Onus to prove the said issue was upon the Defendant.
Since Defendant has not produced any evidence or raised any plea in the written statement which enable this court to take view that the present suit is barred by order 2 rule 2 CPC, hence this issue is decided in favour of plaintiff and against the Defendant.
12. ISSUE No.6 (6) Whether there is no cause of action in favour of plaintiff and against the defendant ? OPD Onus to prove the said issue was upon the Defendant.
Though preliminary objections has been taken in the written statement by the Defendant that the present suit has been filed without any cause of action but again did not lead any evidence to show how the present suit is not SUIT NO. 556/2007 PAGE 11 OF 16 maintainable being filed without cause of action. Moreover, no question has been put in this regard during cross examination except the suggestion that the suit is pre mature for want of slum permission which is denied by the plaintiff. In the absence of any evidence it cannot be said that the present suit has been filed without being cause of action, hence this issue is decided in favour of plaintiff and against Defendant.
13. ISSUE NO. 7
(7) Whether suit is premature for want of permission of competent authority ? OPD Onus to prove this issue was upon the Defendant.
This issue has already been decided by the Ld. Predecessor of this court vide order dated 27.01.2010 in which the court has clearly stated that if the Defendants prove that the rent is less than Rs.3500/ per month then Delhi Rent Control Act and Slum Areas will apply. If the rent is more than Rs.3500/ per month, after the termination of tenancy Delhi Rent Control Act as well as Slum Areas Act is not applicable. The Defendants have not produced any evidence on record that the rent of the premises is less than Rs.3500/ per month. The Defendants have not produced any evidence on record that the notice of termination of tenancy has not been served. Thus in view of the said facts and order of Ld. Predecessor of this court dated 27.01.2010, the Delhi Rent Control Act and Slum Areas Act is not applicable to the facts of the case as the SUIT NO. 556/2007 PAGE 12 OF 16 Defendants are stated to be unauthorised occupants of the premises after the termination of tenancy. The Defendants also filed an application for review of the order dated 27.01.2010 and the said application has been dismissed by this court dated 28.03.2011.
Despite that Defendants contended that the present suit is not maintainable as it has been filed without seeking permission by obtaining authority to file suit for possession against the Defendants on the ground that property is situated in the slum areas and in support of this contention. He relied upon the judgment of Hon'ble High Court title Shyam Kishore and another Vs. M/s Roop Saree Kendra & Others, 2003 IV AD (DELHI) 632 wherein Hon'ble High Court has observed that the possession of a person in spite of termination of his lease under section 106 of TP Act is lawful possession, hence possession of the Defendant cannot be said to be unauthorise and illegal after termination of legal notice.
In contrary, plaintiff relied upon the Supreme Court judgment title Mohan Lal Vs. Siri Krishan, AIR 1978 Delhi 1992 wherein it has been held by Hon'ble Supreme Court of India that applicability of Slum Areas (Improvement & Clearance) Act 1956, section 19 the suit based on individual title against the Defendant whose possession was alleged to be unauthorise and unlawful Section 19 of the Act not applicablepermission of the competent authority not required. Hon'ble Supreme Court of India further observed that concept of statutory tenancy is well understood. Time and again it has been said that SUIT NO. 556/2007 PAGE 13 OF 16 statutory tenancy has no estate or property as a tenant at all, but has mere personal right to retain possession of the property and further observed that person remaining in the occupation of the premises let to him after determination of or expiry of period of tenancy commonly though in law no accurately called (statutory tenant) as such a person not a tenancy at all. He has no estate of interest in the premises occupied by him. He has merely protection of the statute in that he cannot be termed so long as he pays the standard and permissible increase if any and perform the other condition of the tenancy. His right to remain in possession after determination of contractual tenancy is personal. It is not capable of being transferred or assigned and devolved on his death only in the manner provided by the statute a statutory tenant. While concluding Hon'ble Supreme Court of India observed that it is now well settled that after termination of contractual tenancy statutory tenancy has only personal right to continue in the possession till vacation in accordance with the provisions of Act.
It is not out of place to mention here that since in the present case rate of rent is more than Rs.3500/ which was proved by the plaintiff not only by examining herself but also through various documents which are exhibited as Ex.PW1/3, PW1/4, PW1/6 & PW1/15 wherein Defendant herself has admitted rate of rent as Rs.5000/ so I do not understand how the Defendant can be termed as a tenant under DRC Act. It was further observed that "Assuming that property situated in a slum area, no permission of the competent authority under Slum Areas (Improvement and Clearance) Act 1956 is required. Under SUIT NO. 556/2007 PAGE 14 OF 16 section 19 of that act, permission of the competent authority is required for in suit or proceedings for obtaining any decree or order for vacation of tenancy from any building or land in slum area but this suit is not suit for eviction of tenant. It is suit based on individual title against Defendant whose possession is said to be unauthorise and unlawful. Section 19 of Slum Areas (Improvement & Clearance) Act has no application to said suit.
Taking into consideration facts and circumstances of the case, I am of the considered view that in the present case Defendant does not fall within the definition of tenant under DRC Act as rate of rent was Rs.5000/ which was proved by the plaintiff and no contrary evidence has been led by the Defendant, hence I am of the considered view that suit is not barred by section 19 of Slums Areas Act, hence this issue is decided in favour of plaintiff and against the Defendant.
14. RELIEF In view of finding on issues nos.1 to 7, suit of the plaintiff is decreed for possession of the premises i.e. portion on the first floor, portion on the second floor and portion on the third floor in the property bearing No. 185455, Chandni Chowk, Delhi in favour of plaintiff and against the defendants jointly and severally.
SUIT NO. 556/2007 PAGE 15 OF 16 Suit of the plaintiff is decreed for recovery of arrears of rent, if not paid, @ Rs.5000/ per month w.e.f. 01.07.2007 till realisation alongwith interest @ 6% per annum in favour of the plaintiff against the Defendants jointly and severally.
Suit of the plaintiff is also decreed for an amount of use and occupation of suit premises @ Rs.5,000/ w.e.f. 01.07.2007 till handing over vacant possession of suit premises to the plaintiff with pendente lite and future interest @ 6% per annum in favour of plaintiff and against the defendants jointly and severally.
Costs of the suit is also awarded in favour of plaintiff. Decreesheet be prepared accordingly. File be consigned to record room. Announced in the open court On this 1st day of August, 2011 (Rakesh KumarIII) ACJ/ARC(West) Tis Hazari, Delhi SUIT NO. 556/2007 PAGE 16 OF 16