Delhi District Court
Sh. Mukesh Kumar vs Smt. Sarika W/O Sh. Girish Kumar on 27 February, 2013
IN THE COURT OF MS. PRABHDEEP KAUR
CIVIL JUDGE : WEST DISTRICT
TIS HAZARI COURTS: DELHI
Suit No. 807/10
Unique ID No.
1. Sh. Mukesh Kumar,
2. Sh. Vijay Kumar
3. Sh. Krishan Kumar
4. Sh. Lalit Kumar
All sons of Late Sh. Sher Singh,
All Residents of WZ34, Shadipur,
New Delhi08.
..........Plaintiffs
Versus
1. Smt. Sarika W/o Sh. Girish Kumar,
D/o Late Sh. Surinder Kumar Khurana,
R/o H. No. E49, Second Floor, Tagore Garden,
Near Kendriya Vidalaya,
New Delhi.
2. Smt. Bhawna W/o Sh. Hiteshwich,
D/o Late Sh. Surinder Kumar Khurana,
R/o Plot No. 4, West Enclave, Outer Ringh Road,
Pitampura,
New Delhi.
..........Defendants
Date of Filing : 01.09.2010
Date on which order has been reserved : 26.02.2013
Date of pronouncement of Judgment : 27.02.2013
Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 1/23
JUDGMENT
1. Plaintiffs have filed the present suit for the following reliefs:
(a) To pass a decree for possession in favour of the plaintiffs and against the defendants directing the defendants, their assignees, representatives to hand over the peaceful possession of the tenanted premises as shown red in the site plan attached with the plaintiffs situated at the ground floor in property No. 17/3042, Gali No. 12A, Ranjit Nagar, New Delhi to the plaintiffs.
(b) To pass a decree for recovery of arrears of rent/damages for use and occupation charges and mesne profits in respect to the above property as shown in the red in the site plan total amounting to Rs. 18,710/ @ Rs. 110/ from 01.05.2009 to 31.03.2010 and @ Rs./ 3,500/ from 01.04.2010 and 31.08.2010 recoverable from the defendants with interest @ 15% pendent lite and future interest till realization of the above amount.
(c) To hold an enquiry as per provisions of Order 20 Rule 12 CPC for determining the rate of mesne profits/damages for use and occupation for which the plaintiffs are entitled and decree for such sum damages for the period from the delive2ry of possession may be passed in favour of the plaintiffs and against the defendants along with costs of the suit.
2. Plaintiffs Version: In the present suit the plaintiffs stated that Late Sh. Sher Singh, the father of the plaintiffs was the owner/landlord of the property bearing No. 17/3402, Gali No. 12A, Ranjit Nagar, New Delhi (hereinafter called the suit property) and the father of the defendants Late Sh. Surinder Kumar Khurana was inducted as tenant by him in a portion consists of one room, with facility of kitchen, latrine and bath situated at the ground floor of the suit property as shown red in the site plan attached with the plaint. Father of the plaintiffs has since died and Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 2/23 after his death the plaintiffs jointly became the owner and landlord of the suit property and continue to receive the rent from the tenants of the suit property. The father of the defendants died some where in the year 2004 and thereafter the mother of the defendants Smt. Kanta Khurana was accepted as tenant as at the time of his death she was residing with him in the suit property and the mother of the defendants was attorn to the plaintiffs and she lastly paid the rent fro the period from January, 2004 to August, 2005 @ 100/ Per month amounting to Rs. 2,000/ on 18.12.2007 to the plaintiffs and rent receipts have been duly issued by the plaintiffs in her name.
Thereafter, she did not pay the rent of the tenanted property from 01.09.2005 onwards despite repeated requests and demands of the plaintiffs on various occasions and demand notice dated 3.0.03.2009 was served upon her demanding the arrears of rent and the mother of the defendants sent a reply to the aforesaid notice and through reply dated 27.04.2009 to the aforesaid demand notice she sent the rent through pay orders with interest upto 30.04.2009 to the plaintiffs. In that notice dated 30.03.2009, it has been mentioned by the plaintiffs that after the death of Sh. Surinder Kumar Khurana, her husband she had sublet assigned and part with the possession of the entire tenanted premises to one Sh. Krishan Kumar Khurana without the consent of the plaintiffs either written or oral and he is residing the tenanted premises with his family along with her, which she was liable to get the tenanted premises vacated from him and his family members.
Further, in that notice that failing to get the premises vacated from the alleged Sh. Krishan Kumar Khurana, the plaintiffs will be left with no options but to initiate the legal proceedings against her for her eviction on the ground U/sec 14(1)(b) of the DRC Act but the mother of the defendants did not take any step to get the tenanted premises vacated from Sh. Krishan Kumar Khurana and the mother of the defendants sent reply to the demand notice and Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 3/23 in the reply dated 27.04.2009 of the demand notice dated 30.03.2009 the mother of the defendants disclosed the facts that she acquired other alternate accommodation bearing No. 3036, Ranjit Nagar, Gali No. 12A, New Delhi and the plaintiffs filed eviction petition on the ground under section 14(1)(h) of the DRC Act and the said eviction petition is now pending and after receipt of the notice of the aforesaid eviction petition the mother of the defendants di9ed on 05.06.2009 and both the defendants were brought on record being LRs of Smt. Kanta Khurana and the defendant No. 1 alone filed the written statement in that case and now the said case is fixed for evidence of the plaintiffs.
Further, plaintiffs stated that the mother of the defendants paid the rent upto 30.04.2009 and thereafter no rent has been paid in respect of the tenanted premises and the rent from 01.05.2009 onwards was due which both the defendants are liable to pay the same as the mother of the defendants lastly paid the rent upto 31.08.2005 @ Rs. 100/ per month but the defendants have not paid the rent to the plaintiffs despite their repeated requests. Thereafter, the plaintiffs sent a legal notice dated 03.03.2010 through their counsel demanding the arrears of rent from 01.05.2009 to 31.03.2010 @ Rs. 110/ per month along with interest 15% per annum. Through that notice the defendants were also called upon to enhance the rent as per the market rate of rent and the defendants were called upto increase the rent @ Rs. 3,500/ per month w.e.f 01.04.2010 and the said notice dated 03.03.2010 was duly served upon the defendants but the defendants have failed to comply with the said notice and the defendants have neither paid the rent/damages for use and occupation charges of the premises in their occupation as demanded in the notice nor the defendants vacated the premises nor handed over the vacant and peaceful possession of the premises to the plaintiffs, hence the present suit has been filed for the above mentioned relief.
3. Defendant No. 1's Version: Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 4/23 In WS, the defendant No. 1 has denied all the claims of the plaintiffs stating that Sh. Sher Singh has inducted Sh. Surinder Khurana and his family members comprising of two brothers namely Sh. Pooran Khurana and Sh. Krishan Khurana i.e the respondent No. 3 seven sisters namely Smt. Raj Verma (now deceased), Smt. Santosh Sekhar, Smt. Krishna Seth, Smt. Kanta Manocha, Smt. Sushil Manchanda, Smt. Kailash Seth and Smt. Shanta Behl in the year 195758 at monthly rent of Rs. 20/ which was enhanced upto Rs. 100/ per month. The tenancy was created for residential cum commercial purpose which comprises of one room, kitchen and bathroom and open courtyard. Sh. Surinder Khurana and his all the above named brothers and sisters were married from the tenanted premises itself.
Further, Sh. Shurinder Khurana had been running the business of supplying detergent, liquid soaps, etc to the local shop keepers from the tenanted premises and the defendant No. 3 was assisted the deceased Sh. Surinder Kumar Khurana in running the said business during his lifetime. After the death of Sh. Surinder Kumar Khurana the said business is being run by Sh. Krishan Kumar Khurana from the tenanted premises. Since the family of Sh. Surinder Khumar Khurana comprised of his own family and above named brothers and sisters, therefore, the tenanted premise was not sufficient for their accommodation. Accordingly, in the year 1972 Sh. Sher Singh has also got arranged one room in the property No. 3036, Ranjit Nagar, New Delhi. The said room was just adjacent to the room in the tenanted premise and door between the common walls of the said room leadings from one to another, the entire premises has become one which was being used as single premises. This fact is very much within the knowledge of the plaintiffs and they have never raised any objection from 1972 till prior to filing the false and frivolous petitions under DRC Act.
Further, defendant No. 1 stated that the story concocted by the plaintiffs that Sh. Krishan Kumar Khurana was allowed to reside in the tenanted premises by Late Smt. Kanta Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 5/23 Khurana after the death of her husband in the year 2004 is false. It is submitted that after the death of Sh. Surinder Kumar Khurana, Sh. Krishan Kumar Khurana being tenant has been tendering rent to the plaintiffs but they have not issued rent receipt intentionally to Sh. Krishan Kumar Khurana. The plaintiffs have sent a false and frivolous notice dated 30.03.2009 which was admittedly replied through reply dated 27.04.2009 and for alleged arrears of rent with upto date interest was also sent through pay orders by Sh. Krishan Kumar Khurana. Similarly, in response of notice dated 03.03.2010, Sh. Krishan Kumar Khurana has also tendered the rent to the plaintiffs but they have intentionally did not receive the same. Thus, the present suit is without any cause of action.
Further, the suit is barred under section 50 of DRC Act as admittedly rate of rent of the tenanted premises is Rs. 110/ per month and two petitions under section 14(1)(h) and Section 14(1)(b)(d)(h) are already pending.
Further, the suit is bad for non joinder of Sh. Krishan Kumar Khurana as admittedly he is in possession of the tenanted premises.
It is submitted that after the death of the father of the defendants Sh. Krishan Kumar Khurana was accepted as tenant and he had been tendering rent to the plaintiffs but the plaintiffs have intentionally not issued any rent receipt for the rent received by them. It is denied that thereafter she stopped making payment of rent to the plaintiffs or that thereafter she has defaulted in making the payment of rent to the plaintiffs or that she was in arrears of rent from 01.09.2005 onwards in respect of the tenanted premises.
4. Despite ample opportunities, none has appeared on behalf of the defendant No. 2 nor any WS has been filed on behalf of the defendant No. 2, therefore vide order dated 20.01.2011, defendant No. 2 was proceeded with Exparte.
5. By way of replication, the plaintiffs have denied all the claims of the defendants. Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 6/23
6. On the basis of the pleadings and arguments of the parties, vide order dated 20.01.2011, the following issued have been framed: (I) Whether the suit of the plaintiffs is barred by Section 50 of the DRC Act?OPD. (II) Whether the suit of the plaintiffs is bad for non joinder of Sh. Krishan Kumar as necessary party?OPD.
(III) Whether the plaintiffs are entitled to decree of possession against the defendants as prayed for?OPP.
(IV) Whether the plaintiffs are entitled to recovery of arrears of rent/damages as prayed for in clause (b) of prayer of the plaint?OPP.
(V) Relief, if any.
7. In PE, the plaintiffs have examined Sh. Mukesh Kumar as PW1, Sh. Swatantra Yadav as PW2. Plaintiffs have relied upon the following documents:
(a) Site plan is Ex. PW1/1.
(b) Certified copy of notice dated 30.03.2009 is Ex. PW1/2.
(c) Certified copy of postal receipt is Ex. PW1/3.
(d) Certified copy of UPC receipt is Ex. PW1/4.
(e) Certified copy of AD card is Ex. PW1/5.
(f) Certified copy of reply dated 27.04.2009 is Ex. PW1/6.
(g) Computerized copy of legal notice dated 03.03.2010 is Ex. PW1/7.
(h) Postal receipts are Ex. PW1/8 and Ex. PW1/9.
(i) UPC receipt is Ex. PW1/10.
(j) AD card is Ex. PW1/11 and other AD card is Ex. PW1/12.
Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 7/23
8. In DE, the defendant No. 1 has examined Sh. Shriram as DW1, Sh. Narender Madan as DW2, Sh. Vijay Kumar Gupta as DW3, Sh. Satbir Singh as DW4 and Smt. Sarika Behal as DW5. Defendants have relied upon the following documents:
(a) The attested copy of specimen signatures of Sh. Krishan Kumar Khurana is Ex. DW1/1(OSR).
(b) The attested copy of application form is Ex. DW1/2 (OSR).
(c) The attested copy of registration cum demand note is Ex. DW1/3 (OSR).
(d) The attested copy of sanctioned order is Ex. DW1/4. (e) The copy of record certificate dated 29.06.2012 is Ex. DW1/5. (f) The copy of appointment letter is Ex. DW2/1 (OSR). (g) Salary certificate to Smt. Santosh Khurana dated 21.10.1995 is Ex. DW2/2 (OSR). (h) The attested copy of Elector Search Module of ERMS pertaining to SPIC No.
TCE1172303, TCE1172311, DL/07/066/015096 and DL/07/066/015097 is Ex. DW3/1 to Ex. DW3/4.
(i) The attested copy of bearing registration No. DL4SN4439 bearing date of registration 04.10.1995 in the name of Sh. Krishan Kumar Khurana is Ex. DW4/1.
9. My Issue Wise Findings: (A) For the sake of convenience the issue No. 3 and 4 are discussed together. Issue No. 3 Whether the plaintiffs are entitled to decree of possession against the defendants as prayed for?OPP.
Issue No. 4 Whether the plaintiffs are entitled to recovery of arrears of rent/damages as prayed for in clause (b) of prayer of the plaint?OPP.
(a) The onus to prove these issues is upon the plaintiffs. To prove these issues the Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 8/23 plaintiffs have examined himself as PW1 and PW1 was duly cross examined and during cross examination he has stated that ".............Sh. Krishan Pipal has prepared the site plan filed by me in this case...............The said architect has drawn the rough site sketch of tenanted premises comprises of one room, one kitchen, one latrine cum bathroom. There is no courtyard in this suit premises. Vol. There is a passage at point A in this site plan Ex. PW1/1. It is correct that in this site plan the passage is not reflected. It is incorrect to suggest that that the suit property includes the courtyard and there is no passage as mentioned by me above. I do not know who were residing along with Sh. Surender Kumar Khurana (now deceased) at the time of creation of tenancy by my father. My father can only tell the same. For the first time, I started visiting the tenanted premises in the year 1973 and from 1978 onwards, I regularly visited the tenanted premises upto 1978. Thereafter, I never visited the tenanted premises. I do not know Sh. Surender Kumar Khurana was married from the tenanted premises. It is wrong to suggest that Lt. Sh.Surender Kumar Khurana had obtained the tenanted premises for himself and his brothers and sister. I do not know Sh. Purn Khurana has died and she may be accepted as a tenant in the tenanted premises. Smt. Kanta Khurana came to me in Dec.2007............
........................It is incorrect to suggest that Smt. Kanta Khurana never visited to me because She could not move due to illness. The electricity connection in the tenanted premises in the name of Sh.Mohan Lal. I do not know in whose name the water connection is installed. I do Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 9/23 not know if the telephone connection is installed in the tenanted premises. It is incorrect to suggest that I ma intentionally showing ignorance about the installation of telephone connection because the same is installed in the name of Sh. Krishan Kumar Khurana. It is incorrect to suggest that the marriage of brothers and sisters of Lt. Surender Kumar Khurana was not paying rent on time during his life time. I issued legal notice dated 21.04.1992 to Late Sh.Surender Kumar Khurana for nonpayment of rent. Lt. Smt. Kanta Khurana had paid rent to me once. Again said, she paid the rent to me twice. Once, she came to me personally and, thereafter, she tendered the rent through pay orders. I have not issued any receipt for the rent received by me through pay orders. I had issued the rent receipt to Lt. Smt. Kanta Khurana for the period from 01.01.2004 to 31.08.2005.............
...................During the period March 2009, the rate of tenanted premises was Rs.100/ per month. I did not made any protest when I received the rent in compliance of notice dated 30.03.2009. My brother has also not protested...............
................It is wrong to suggest that Krishan Kumar Khurana had paid the rent to me in compliance of notice dated 30.03.2009 through pay orders. We encashed the said pay orders. We had not issued rent receipt for the said amount pay orders, received by us..................
.............. It is further wrong to suggest that Lt. Smt. Kanta Khurana had not sub let, assigned and part with the possession of the entire premises to Sh.Krishan Kumar Khurana. I do not know the terms of tenancy which were settled between my deceased father and the tenants. Similarly, I don't Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 10/23 know what were the terms agreed between my deceased father and late Sh. Surender Kumar Khurana. My father had died on 07.07.1977....................
............In the notice dated 03.03.2010 i.e Ex. PW1/7, I demanded arrears of rent @ Rs. 110/ per month till March 2010 and thereafter @ Rs. 3,500/ per month. We have demanded the arrears of rent till December, 2007 @ Rs. 100/ per month in the demand notice Ex. PW1/2. We have also demanded enhanced rent @ Rs. 3,500/ per month in the notice Ex. PW1/2. Again said in the notice Ex. PW1/2 the arrears of demand was till 31.03.2009. It is correct that we have received the arrears of rent in compliance of notice Ex. PW1/2 through pay order. We have not received rent thereafter.............
............At this stage the witness is confronted with envelops marked as Ex. PW1/X, Ex. PW1/X1 and Ex. PW1/X3 bearing the correct address of the plaintiffs. The witness deposed that the address mentioned in the aforesaid exhibited envelops is the correct address of the plaintiffs. We used to received the letters/posts at the said address. The said envelops reached at our address and we had receive the same. .................
..............Sh. Krishan Kumar Khurana is in occupation of the suit property today. He was sitting even at the time of institution of the present suit. Both the defendants are not in occupation of the suit property nor they were in occupation at the time of institution of the present suit. It is wrong to suggest th at I have wrongly mentioned in my affidavit Ex. PW1/A tghat the defendants are in unauthorized use and occupation of the tenanted premises. I have not impleaded Sh. Krishan Kumar Khurana as a party in Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 11/23 the present suit. It is further wrong to suggest that Sh. Krishan Kumar Khurana is residing in the tenanted premises as a tenant..............."
(b) Further, defendants have examined Sh. Swatantra Yadav as PW2 and during examination in chief he has stated that "...........I have brought the summoned record pertaining to file No. E194/2011 titled as Mukesh Kumar and others Vs. Kanta Khurana. I have seen the certified copy of Ex. PW1/2 to Ex. PW1/6 which are Ex. PW1/67 to Ex. PW1/71 in the summoned file brought by me and all the originals are in the summoned file. ................."
(c) On the other hand the defendants have examined Sh. Sh. Shriram as DW1 during examination in chief he has stated that "...........I have brought the summoned record. As per our record, telephone connection No. 25846504 is installed in the name of Sh. Krishan Kumar Khurana at property No. 17/3042 Ranjit Nagar, New Delhi Near Shiv Chow. The said connection was got registered on 17.09.1993 with our department and wsa sanctioned on 29.09.2013. Earlier, the telephone connection number was 25786504, which was later on changed to 25846504 on dated 24.04.2003. The said connection is still working from the aforesaid property. The attested copy of specimen signatures of Sh.Krishan Khuranan is Ex.DW1/1 (OSR). The attested copy of application form is Ex.DW1/2 (OSR). The attested copy of registration cum demand note is Ex.DW1/3 (OSR). The attested copy of sanctioned order is Ex.DW1/4. The copy of record certificate dated 29.06.2012 is Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 12/23 Ex.DW1/5. Inadvertently, the name of Krishan Khurana has been wrongly mentioned in Ex.DW1/5. I have no personal knowledge about the record brought by me. There is no document of proof of residence of Sh.Krishan Khurana to show in which capacity he is residing in the said premsies such as title document, rent receipt, etc. It is wrong to suggest that Sh.Krishan Khurana has manipulated the documents Ex.DW1/1 to Ex.DW1/4 to show his possession....................."
(d) Further, defendants have examined Sh. Narender Madan as DW-2 during examination in chief he has stated that "...........I have brought the summoned record. Smt. Santosh, w/o Sh.Krishan Khurana, R/o 17/3042, Ranjeet Nagar, New Delhi was appointed as a teacher w.e.f. 01.04.1989 in Sant Nirankari Public School, Pahar Ganj, Delhi. The copy of Appointment letter is Ex.DW2/1 (OSR). The school has also issued salary certificate to Smt. Santosh Khurana, dated 21.10.1995 (OSR), which is Ex.DW2/2. I have been working in the school since the year 2000. I have deposed on the basis of record brought by me. I have no personal knowledge. In the record brought by me, there is no document showing proof of residence in which capacity she is residing in the said premises such as title document, rent receipt, etc......................"
(e) Further, defendants have examined Sh. Vijay Kumar Gupta as DW3 during examination in chief he has stated that "...........I have brought the summoned record i.e. Elector Search Module of ERMS pertaining to SPIC No.TCE1172303, TCE1172311, Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 13/23 DL/07/066/015096 and DL/07/066/015097 issued in the name of Sh.Krishan Chandra and Sh.Santosh Khurana. The record brought by me is tally with the identity cards of Sh.Krishan Chandra and Sh.Santosh Khurana available on record. I have no personal knowledge about the persons whose record I brought in which capacity they are occupying the suit property......................"
(f) Further, defendants have examined Sh. Satbir Singh as DW4 and during examination in chief, he has stated that "..........I have brought the summoned record i.e attested copy of bearing registration No. DL4SN4439 bearing date of registration 04.10.1995 in the name of Sh. Krishan Kumar Khurana and the same is Ex. DW4/1.........."
(g) Further, defendants have examined Sh. Sarika Behl as DW5 during examination in chief he has stated that ".............It is correct that my father was a tenant in the suit property. It is correct that my father was working with R.K. Associated Chartered Accountant in Daryaganj. My father died in the year 2004. It is wrong to suggest that after the death of my father no rent has been paid. I have signed and verified the WS after going through the contents of the same. I have also gone through the contents of my affidavit which is Ex. DW5/A and after going through the contents of the same, I signed the affidavit. The affidavit was got attested by me but I do not remember the name of Oath Commissioner. It is wrong to suggest that my mother paid Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 14/23 the rent from January, 2004 to August, 2005 on 18.12.2007 and thereafter no rent was paid to the plaintiffs. It is wrong to suggest that the rent receipt was issued for that rent by the plaintiffs to my mother. It is correct that demand notice dated 30.03.2009 which is Ex. PW1/2 was sent by the plaintiffs to my mother. It is correct that my mother sent a reply which is Ex. PW1/6. .................
..............The pay orders sent along with Ex. PW1/6 were not sent by my mother but were sent by my uncle Sh. Krishan Khurana. The said fact has been mentioned in Ex. PW1/6 that the pay orders have been sent on behalf of Sh. Krishan Khurana. I am 12th passed. I have gone through the contents of Ex. PW1/6, the same is not mentioned in the notice that the rent has been sent on behalf of sh. Krishan Khurana and not sent by my mother.............
..............It is wrong to suggest that from the reply Ex. PW1/6 the plaintiffs came to know that my mother has acquired an alternative accommodation in the premises bearing No. 3036, Ranjeet Nagar, Gali No. 12A, New Delhi. It is correct that the plaintiffs have filed eviction petition against my mother which was filed in the court of Ms. Navita Kumari the then Ld. ARC. It is correct that after the service of summons of that eviction petition my mother had expired on 05.06.2009 and I and my sister namely Bhawna were substituted as Legal heirs of my mother. The said eviction petition has been dismissed but I do not remember the exact date and reasons of dismissal of that eviction petition. It is correct that demand notice Ex. PW1/7 was sent by plaintiffs to me but I do not know Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 15/23 whether the said notice was also served upon my sister Bhawna. It is correct that the said notice was received by me..............
..............I had informed to my uncle Sh. Krishan Khurana regarding the notice Ex. PW1/7 and he had sent the rent. The said rent was not sent on my behalf.................
..............It is wrong to suggest that Sh. Krishan Kumar Khurana is not occupying the suit property with the permission and consent of the plaintiffs. I have gone through the contents of notice Ex. PW1/7. It is wrong to suggest that my tenancy was terminated through notice Ex. PW1/7. Vol. I am not the tenant in the suit property. It is wrong to suggest that my father was never in the business of selling detergent..............."
(h) It is argued on behalf of the plaintiffs that in the present suit, the original tenant was Sh. Surender Kumar Khurana who has died and thereafter, mother of defendant inherited the tenancy right and she also expired in 2009 and defendants have inherited the tenancy right and as per DRC Act, they have inherited the tenancy rights only for the period of one year and thereafter, they are mere unauthorized occupants and liable to vacate the suit premises and accordingly, the plaintiffs has filed the present suit. It is further argued that the defendants have not filed any site plan, therefore, the site plan filed by the plaintiffs is to be taken as correct and proof. Further, as far as plea of the defendants that Sh. Krishan Kumar is the tenant of the plaintiffs, is concerned, admittedly the plaintiffs has never issued any rent receipt in name of Sh. Krishan Kumar nor plaintiffs has ever accepted him as a tenant and therefore, Sh. Krishan Kumar is neither a necessary party nor a proper party in the present suit. Further, during cross examination, DW5/defendant No. 1 has admitted that only father of the defendants was inducted as tenant in the present suit and thereafter the father of the defendants died in 2004 and mother of the defendants Smt. Kanta Khurana inherited the tenancy rights but she was Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 16/23 irregular in payment of rent and therefore, vide notice dated 30.03.2009 was served upon Smt. Kanta Khurana whereby she was asked to pay the arrears of the rent as well as to vacate the property on the ground that she has sublet the property to one Sh. Krishan Kumar without any authority from the plaintiffs. Mother of the defendants sent a reply to the said notice dated 27.04.2009 along with pay orders on the rent and interest. Thereafter, plaintiffs filed an eviction proceedings and on 05.06.2009, Smt. Kanta Khurana died and LRs of Smt. Kanta Khurana were impleaded as respondents in the said eviction proceedings. Thereafter, plaintiffs again served a notice dated 03.03.2010 and terminated the tenancy and also asked to pay the arrears but defendants failed, hence, the present suit has been filed and on appreciation of evidence, it is clear that plaintiffs has proved his case and is entitled to get the relief as prayed for.
(i) On the other hand, it is argued on behalf of the defendants that the suit property was originally given to Sh. Surender Kumar Khurana who has taken the premises on rent along with his family and admittedly at present the premises is in possession of the brother of Sh. Surender Kumar Khurana i.e in possession of Sh. Krishan Kumar but despite that the plaintiffs has not made such Sh. Krishan Kumar as a party in the present suit. In view of the judgments passed by the Hon'ble Supreme Court, the brother of the original tenant who generally resides along with tenant is a necessary party to the eviction proceedings and therefore, Sh. Krishan Kumar is a necessary party in the present suit. Further, it is argued that it is admitted fact that Sh. Krishan Kumar is staying in the property since 1958 and defendants have placed on record documents to support her contention that Sh. Krishan Kumar is in occupation of the property since 1958. On the other hand, the plaintiffs has nowhere suggested by these documents are manipulated documents or Sh. Krishan Kumar is not in possession since 1958 and therefore, it is proved that Sh. Krishan Kumar is in possession of the property and is a necessary party in the present suit.
Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 17/23
It is further argued on behalf of the defendant that admittedly the rent is Rs. 100/ per month and in view of the recent judgment, it is clear that the plaintiffs/landlord can not enhance the rent arbitrarily to bring the tenancy out of purview of DRC Act and therefore, the suit is barred Under DRC Act.
(j) Arguments heard. Record perused. (k) In the present suit the admitted facts are that;
Father of the defendants i.e Sh. Surender Kumar Khurana was inducted as a tenant in the property and he died in 2004. As the rent of the suit property was Rs. 100/ per month at the time the LRs of Sh. Surender Kumar Khurana became statutory tenant under DRC Act and the tenancy rights were inherited by the wife of the defendant Smt. Kanta Khurana.
Now as per plaintiffs, the tenancy of Smt. Kanta Khurana was terminated vide notice dated 30.03.2009 as well as vide notice dated 03.03.2010 and Smt. Kanta Khurana died on 05.06.2009 and the protection of statutory tenancy ended with that and the defendants being LRs of Smt. Kanta Khurana are liable to vacate the property. As per plaintiffs, the property is in possession of one Sh. Krishan Kumar Khurana whom the Late Smt. Kanta Khurana has sublet the property without consent of the plaintiffs and therefore, Smt. Kanta Khurana and now her LRs are liable to get the premises vacated and to hand over the possession to the plaintiffs and the alleged sub tenant is not a necessary party in the present suit.
(l) On the other hand, as per defendants, that tenancy commenced in 1958 when Sh. Surender Kumar Khurana was inducted as tenant along with his family members and on the death of Sh. Surender Kumar Khurana, his other family members including his brothers and sisters who were originally inducted in the premises along with the tenancy of Sh. Surender Kumar Khurana, are necessary parties. Further, the plaintiffs can not enhance the rent from Rs. 100/ to Rs. 3,500/ per month just by way of one notice.
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(m) In the present suit, it is clear from Ex. PW1/D1 to Ex. PW1/D11 (which are rent receipts issued by the father of the plaintiffs in favour of the father of the defendant) that the tenancy commenced in the year 1958 and the rent was Rs. 20/ per month which was later on enhanced from time to time. The father of the plaintiffs died in 1977 and the plaintiff's being LR of their father became landlord and the tenancy continued under the land lordship of plaintiff's and Sh. Surender Kumar Khurana continued as tenant. Sh. Surender Kumar Khurana died in 2004 and thereafter the tenancy devolved upon the wife of Sh. Surender Kumar Khurana i.e Smt. Kanta Khurana as per provisions of Delhi Rent Control Act. During life time of Smt. Kanta Khurana, the plaintiffs served a notice to her on 30.03.2009 whereby her tenancy was terminated on the ground that she has sublet the property to one Sh. Krishan Kumar Khurana and has parted with the possession. In compliance of the notice, Smt. Kanta Khurana paid the rent by way of pay orders. Thereafter, Smt. Kanta Khurana died on 05.06.2009. After her death plaintiffs again served a notice dated 03.03.2010 upon the LRs of Smt. Kanta Khurana i.e defendants herein whereby the plaintiffs have increased the rent from Rs. 100/ upto Rs. 3,500/ per month.
(n) It is clear that the plaintiffs can not enhance the rent from Rs. 100/ per month to Rs. 3,500/ per month arbitrarily because even if the plaintiffs want to enhance the rent, the same can be done as per legal procedure and provisions and plaintiffs can not enhance the rent more than @ 10% of the original rent. Further, in support of contention that Sh. Krishan Kumar is in possession of the property since the inception of the property, defendant has proved the following documents:
(i) The telephone connection installed in the suit premises on 17.09.1993 in the name of Sh. Krishan Kumar Khurana and the relevant documents are Ex. DW1/1 to Ex. DW1/5.
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(ii) Appointment letter of wife of Sh. Krishan Kumar Khurana dated 01.04.1989 which is Ex. DW2/1.
(iii) I Card of Sh. Krishan Kumar Khurana dated 04.04.1995 and I card of his wife issued in the year 1995 (the relevant documents are Ex. DW3/1 to Ex. DW3/4).
(iv) Registration certificate of state transport in the name of Sh. Krishan Kumar Khurana dated 04.10.1995 Ex. DW4/1.
All these documents show the address of Sh. Krishan Kumar Khurana and his wife as of suit property. These documents don't show in which capacity, Sh. Krishan Kumar Khurana and his wife are residing in the suit property but at the same time, these documents show or prove the factum of possession of Sh. Krishan Kumar Khurana over the suit property and by virtue of these documents, defendant No. 1 has established and proved the fact that Sh. Krishan Kumar Khurana is in possession of the property at least since 1989.
(o) Now, as per plaintiffs Smt. Kanta Khurana has sublet the property to Sh. Krishan Kumar after the death of her husband in 2004 but the documentary proof discussed above show the contrary and show that the said Sh. Krishan Kumar Khurana has not been inducted as sub tenant in 2004 and is in possession of the property at least since 1989. It is settled principle that man can lie but documents don't and therefore, there is nothing to disbelieve the documents.
Further, the plaintiffs has averred that Sh. Surender Kumar Khurana was inducted as original tenant and after his death, his wife has inherited the tenancy and plaintiffs have terminated the tenancy of Smt. Kanta Khurana and therefore, after her death, her LRs have become unauthorized occupants and therefore, the civil suit for possession is maintainable. It is correct legal proposition that in case of death of statutory tenant or termination of tenancy of statutory tenant, everyone having possession over the suit property whether LRs of statutory Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 20/23 tenant or any other person holding possession on behalf of the statutory tenant are unauthorized occupants and civil suit for possession against such person is maintainable.
(p) In the present suit, the plaintiffs has failed to prove that suit property was sublet by Smt. Kanta Khurana in the year 2004 and it has been established by documentary proof that Sh. Krishan Kumar Khurana is in possession of the suit property since 1989. Now, after the death of statutory tenant and after termination of tenancy of statutory tenant, he is an unauthorized occupants but the plaintiffs has not impleaded the alleged unauthorized occupants as a party in the present suit. Further, during cross examination PW1 has stated that "..........It is further wrong to suggest that Sh. Krishan Kumar Khurana is residing in the tenanted premises as a tenant.........."
Thus, it is clear that plaintiffs has sought the relief of possession against the defendants who are admittedly not in possession of the property. It is settled principle that the relief of possession can not be granted against the person who is not in possession of the property and a defacto possessor of the property is a necessary party in a suit for possession. In view thereof, it can be said that the relief of possession has become infructous as admittedly the present defendants are not in possession of the suit property so a decree of possession can not be passed against them and the person who is in possession of the property/the actual defacto possessor has not been paid a party and as he has not been made a party, a decree can not be passed against him as the decree is binding only on the parties to the suit. Consequently no question of damages or recovery of rent arises. In view of the above discussion, issue No. 3 and 4 are decided in favour of the defendants and against the plaintiffs. (B) For the sake of convenience the issue No. 1 and 2 are discussed together. Issue No. 1 Whether the suit is barred U/sec 50 of DRC Act?OPD. Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 21/23 Issue No. 2 Whether the suit of the plaintiffs is bad for non joinder of Sh. Krishan Kumar Khurana as necessary party?OPD.
The onus to prove these issues is upon the defendants. In view of the discussion under issue No. 3 and 4, it is clear that the suit is not barred Under the provisions of DRC Act as the original tenant has expired in 2004 and his wife has inherited the tenancy rights and her tenancy was terminated by way of notice as well as by way of her death, therefore, the suit for possession before the Civil Court against the LRs of statutory tenant is not barred under the provisions of DRC Act as after termination of statutory tenancy, LRs have become only licensees.
Further, in view of the findings of issue No. 3 and 4, it is clear that Sh. Krishan Kumar Khurana is in possession of the suit property and the defendants are not in possession of the suit property even at the time of filing of the suit, therefore, Sh. Krishan Kumar Khurana is the necessary party in a suit for possession. In view thereof, the suit can be said bad for non joinder of necessary parties.
In view of the above discussion, issue No. 1 is decided in favour of the plaintiffs and against the defendants and issue No. 2 is decided in favour of the defendants and against the plaintiffs.
10. As issue No. 2, 3 and 4 have been decided in favour of the defendants and against the plaintiffs and has been held that the suit is bad for non joinder of necessary parties and the relief of possession has become infructous against the present defendants as admittedly the defendants are not in possession of the property and one Sh. Krishan Kumar Khurana is in possession of the property even at the time of filing of the suit, the suit is liable to be dismissed. Accordingly, the suit is dismissed being devoid of merits.
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Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Announced in the open court on th 27 February, 2013 (PRABH DEEP KAUR) CIVIL JUDGE05(WEST) THC/DELHI/27.02.2013 Suit No. 807/10 Sh. Mukesh Kumar Vs. Smt. Sarika Page No. 23/23