Delhi District Court
Smt. Anita Arora W/O Sh. Manoj Kumar ... vs Ms. Sangeeta Bhalla D/O Sh. J.S. Bhalla on 6 May, 2014
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE 05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No. 284/12
Unique ID No.
Smt. Anita Arora W/o Sh. Manoj Kumar Arora,
R/o K44, West Patel Nagar,
New Delhi. .............Plaintiff
Versus
Ms. Sangeeta Bhalla D/o Sh. J.S. Bhalla,
R/o J5/49, First Floor,
Back Portion, Rajouri Garden,
New Delhi27. .............Defendant
Date of filing : 02.11.2012
Date on which order has been reserved : 05.05.2014
Date of pronouncement of judgment : 06.05.2014
JUDGMENT
1. Plaintiff has filed the present suit for the following reliefs:
(a) To pass a decree of possession in favour of the plaintiff and against the defendant in respect of two rooms set on the first floor of the property bearing No. J5/49, Rajouri Garden, New Delhi (hereinafter referred the suit property).
Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.1/23
(b) To pass a decree for a sum of Rs. 2,00,000/ in favour of the plaintiff and against the defendant on account of damages/mesne profits for illegal use, occupation and possession of the suit property at the rate of Rs. 20,000/ per month w.e.f 01.12.2011 till 30.09.2012. Further, a decree of pendent lite and future damages at the same rate of Rs. 20,000/ per month be also awarded in favour of the plaintiff and against the defendant w.e.f. 01.10.2012 till the defendant vacates and hands over the actual, vacant, peaceful and physical possession of the said premises to the plaintiff.
2. Plaintiffs Version: In the present suit, plaintiff stated that the plaintiff is the owner/landlady in respect of the suit property and two rooms sent on the first floor of the said property was let out to the defendant for residential purposes at a monthly rent of Rs. 5,500/ for a period of 12 months, on the basis of the rent agreement dated 02nd of January, 2009. By means of a mutual settlement, the time was extended on 26.08.2011 whereby the defendant agreed to vacate and hand over the premises by 30th of November, 2011. The lease had expired by efflux of time and the defendant failed to vacate the suit property inspite of repeated requests by the plaintiff from time to time. Ultimately, on 03.09.2012, the plaintiff serve a legal notice upon the defendant, requesting the defendant to vacate and hand over the vacant and peaceful possession in respect of the suit Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.2/23 property and further asked to pay the damages for use and occupation at the rate of Rs. 20,000/ per month. The said notice was duly received by the defendant but the defendant sent a reply dated 17.10.2012, wherein the defendant had admitted the tenancy but further alleged that there was no extension of the lease and she is not liable to pay the damages at the rate of Rs. 20,000/. The plaintiff in the mean time had already sent a reminder to the defendant vide reminder dated 05.10.2012, regarding the vacation of the said premises but no reply to the same was received. Hence, the present suit. As the defendant has also failed to pay the damages for use and occupation in respect of the suit property w.e.f 01.12.2011 at the rate of Rs. 20,000/ per month because the prevailing rate of rent in respect of the suit property is more than Rs. 20,000/ per month, keeping in view the location and surrounding circumstances, where the property in dispute is situated, because the property in dispute is situated in Rajouri Garden, New Delhi which is one of the posh area of West Delhi. The defendant is liable to pay the damages for the period w.e.f 01.12.2011 to 30.09.2012, at the rate of Rs. 20,000/ per month, which comes to Rs. 2,00,000/. The defendant is also liable to pay the damages for use and occupation in respect of the suit property from the date of filing of the suit till the delivery of possession at the said rate and the plaintiff undertakes to pay the court fees on the decree of passed by this court in accordance with law.
3. Defendant's Version: Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.3/23 In WS, defendant has denied all the claims of the plaintiffs on the following grounds:
(i) That there is no person exists in the name of defendant i.e Ms. Sangeeta Bhalla D/o Sh. J.S. Bhalla in the suit property. The address as given in the petition is totally wrong. The name of the defendant is only Ms. Snageeta but she is not known as Bhalla and the name of the father of Ms. Sangeeta is only Joginder Singh. Apart of above Ms. Sangeeta is residing in J5/49, 1st floor, Rajouri Garden, New Delhi27 but not in the suit property. However, the suit property is different premises having different ownership. Factually, the plaintiff herself is unaware about municipal number of the property although the subject matter of the suit property mentioned in the plaintiff is definitely not belongs to plaintiff.
(ii) Neither there is an privities of written agreement between plaintiff and defendant or any rent agreement had ever been executed in respect of the premises bearing No. J5/49, 1st floor back portion, Rajouri Garden, New Delhi27. There is also no written agreement ever exist between the parties of the suit in respect of the suit property.
(iii) There is no cause of action in respect of premises in dispute as mentioned in the pliant due to the knowledge of the defendant that the plaintiff is not the owner of landlord of suit property which has separate boundary wall, separate municipal number, separate structure from the property in which the defendant is in possession and occupation. Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.4/23
(iv) The documents placed on record in form of memorandum of settlement dated 26.08.2011 is neither bears signatures of defendant nor the property number corroborates with the property occupied the defendant. However, the memorandum of settlement is fabricated and fake documents procured with a malafide design. The municipal number mentioned in memorandum of settlement does not corroborates the property to which the defendant is in possession and occupation.
(v) The property bearing No. J5/49, Rajouri Garden is adjacent to the property No. J5/49, Rajouri Garden, having separate boundary wall and structure. Memorandum of settlement as placed on record is neither concerned to the defendant with vehement submission that the defendant in possession and occupation of different property from the property mentioned in memorandum of settlement and signatures exist on the said settlement is/are not the signatures of defendant. However, the signatures exist in the name of defendant are forged one if attempted to frame the defendant. Defendant is residing in property bearing No. J5/49, 1st Floor, Rajouri Garden, New Delhi27 but not in premises mentioned in the plaint. Factually, the defendant is not concern to the suit property and thus need no proper reply.
(vi) It is not denied that the defendant is the tenant under the land lordship of plaintiff in respect of property bearing No. J5/49, Rajouri Garden, New Delhi27 and difference of property No. J5/49 and J5/49A Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.5/23 have specifically been shown in site plan filed by the defendant.
4. Replication: By way of replication, plaintiff has denied all the claims of the defendants stating that the defendant is a tenant in respect of the premises No. J5/49, First Floor, Rajouri Garden, New Delhi and the defendant had also admitted in the reply to the notice that she is a tenant in respect of property bearing No. J5/49, First Flor, Rajouri Garden, New Delhi.
5. On the basis of pleadings and arguments of the parties, vide order dated 02.07.2013, the following issues have been framed: (I) Whether there exists landlord tenant relationship between the parties in respect of the suit property (as mentioned in prayer clause A of the plaint)?OPP.
(II) Whether the plaintiff is entitled to relief of possession as prayed for in prayer clause A of the plaint?OPP.
(III) Whether the plaintiff is entitled to relief of recovery as prayed for in prayer clause B of the plaint?OPP.
(IV) Whether the plaintiff is entitled to relief of damages as prayed for in prayer clause C of the plaint?OPP.
(V) Any other relief.
6. To prove his case, plaintiff has examined herself as PW1 and Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.6/23 plaintiff has relied upon the following documents:
(i) Rent agreement dated 02.01.2009 is Ex. PW1/1.
(ii) Site plan is Ex. PW1/2.
(iii) Mutual Agreement is Ex. PW1/3.
(iv) Legal Notice dated 03.09.2012 is Ex. PW1/4.
(v) Courier Receipts is Ex. PW1/5.
(vi) Original envelope received back unserved is Ex. PW1/6.
(vii) Notice dated 05.10.2012 is Ex. PW1/7.
(viii) Original courier receipt is Ex. PW1/8.
(ix) Reply dated 17.10.2012 is Ex. PW1/9.
7. On the other hand, in their defence, defendant has examined herself as DW1 and Sh. Manav Malik as DW2. Defendant has relied upon the following documents:
(i) Site plan is Ex. PW1/D4.
(ii) Photographs are Ex. DW1/2, 3 and 4 are already Ex. PW1/D1 to 4.
(iii) Copy of driving license of DW2 is Ex. DW2/1(OSR).
8. The final arguments have been concluded from both the sides on 05.05.2014.
9. My Issue Wise Findings: (A) For the sake of convenience, issue No. 1 and 2 are decided Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.7/23 together.
Issue No. 1: Whether there exists landlord tenant relationship between the parties in respect of the suit property (as mentioned in prayer clause A of the plaint)?OPP.
Issue No. 2: Whether the plaintiff is entitled to relief of possession as prayed for in prayer clause A of the plaint?OPP.
(i) The onus to prove these issues is upon the plaintiff. To prove the same, plaintiff has examined herself as PW1 and during examination in chief by way of affidavit, she has reasserted the facts mentioned in the plaint. She was duly cross examined and during cross examination, she has deposed that ".............I do not remember of the date of visiting the suit property but it was in the last year. The site plan Ex. PW1/2 got prepared in the court. The site plan Ex. PW1/2 was prepared as per my instructions........I do not know the municipal No. of the kothis mentioned in the site plan Ex. PW1/2. I do not remember the area of the property No. J5/49. I did not file any photographs of J5/49. I can identify my property, if photocopies will be shown to me. The three photographs shown to me are obtained to ground floor. I can not say exactly in which photograph, the first floor of my property J5/49 is existing. I identify the property existing in photograph No. 4 i.e Ex. PW1/D1..........It is correct that property bearing No. J5/49 is about 160 Sq. Yards but I have two rooms set on first floor on the back side of property bearing No. J5/49. The site plan Ex. PW1/D4 is incorrect. The entrance of my property No. J5/49 is from back gali. My entry of my property No. J5/49 is from stairs at point A shown in site plan Ex. PW1/2......I did not file the ownership/title documents on record in respect of the property No. J5/49, Rajouri Garden.........Sangeeta is residing in property No. J5/49, 1st floor, Back Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.8/23 side of the property. I do not remember whether the number of my property is J5/49 or J5/49A........The name expressed of my tenant as Sangeeta Bhalla at the time of execution of rent agreement in 2009..........I do not remember the name of the person from whom I have purchased the property No. J5/49, 1st floor Rajouri Garden. He was one Sikh person.......The property No. J5/49 and J5/49A are the same properties. I do not know whether the electricity connections in the premises No. J5/49 and J5/49A are separate and stand in different name also........I have never deposited the payment of electricity bill and only the defendant being in possession is paying the electricity bill, so I can not say anything regarding the same.........Defendant/Sangeeta is residing in the property No. J5/49, First floor, Rajouri Garden, New Delhi. I have never occupied and resided in property bearing No. J5/49, First Floor, Rajouri Garden, New Delhi at any point of time.........Property No. J5/49, First floor, Rajouri Garden, New Delhi and J5/49, First Floor, Rajouri Garden are the same and one property. Vol. The property which I have given to defendant on rent is the property in which the defendant is at present residing..........It is wrong to suggest that property no. J5/49 and J5/49A are one and same property and are not two different properties. Vol. The property which I have given on rent to Sangeeta/defendant is the property where the defendant/Sangeeta is residing at present and the property No. J5/49, first floor, Rajouri Garden, New Delhi........."
(ii) On the other hand, defendant has examined herself as DW1 and during examination in chief, he has reasserted the facts mentioned in WS and she was duly cross examined and during cross examination, she has deposed that "...........The premises in dispute was taken by me on rent in first week of May, 2007. I have taken premises No. 49A, 1st floor, Rajouri Garden, New Delhi.........At the time of commencement of Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.9/23 tenancy, I have signed the rent agreement in which it was stated that the rate of rent is Rs. 5,000/ per month........This rent agreement was signed at the time of extension of tenancy for the second time. I have signed the said agreement Ex. PW1/1 at point A on first page, at point B on second page and at point C on third page..... It is correct that I have paid rent to the landlady i.e Smt. Anita Arora/plaintiff in compliance of rent agreement Ex. PW1/1........It is correct that one rent agreement entered into between me and plaintiff at the time of commencement of tenancy and later on, second rent agreement was entered into between me and plaintiff at the time of renewal of tenancy and the second rent agreement is Ex. PW1/1..........It is incorrect that I have signed Ex. PW1/3 at point A on first page, at point B on second page and at point C on third page.........It is wrong to suggest that MO Ex. PW1/3 has been signed by me and I am denying my signatures deliberately.............It is correct that Ex. DW1/P1 shows my name as Sangeeta Dolly as Dolly is my nick name.......It is correct that I have received the legal notice in January, 2013........It is correct that I have received the legal notice from counsel for plaintiff which I have replied through my counsel and reply is Ex. PW1/9........At the time when rent agreement was signed by me, plaintiff came to the premises and plaintiff was scared of my pets and in the hurry, I just signed the documents without reading the same..........The number of tenanted premises is J5/49A, First Floor, Rajouri Garden, New Delhi. The premises 5/49, First Floor, Rajouri Garden, New Delhi and 5/49A, First Floor, Rajouri Garden, New Delhi are two different premises. The previous owner of 5/49A, First Floor, Rajouri Garden, New Delhi was Sh. Harpal Singh and from Sh. Harpal Singh, plaintiff purchased two room set and the said two room set was given to me on rent. I do not know who has prepared the site plan Ex. PW1/D4. My father has got the site plan Ex. PW1/D4 got prepared............."
(iii) Further, defendant has examined Sh. Manav Malik as DW2 and he was duly cross examined and during cross examination, he has Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.10/23 deposed that "...........I am residing in property bearing No. J5/49, Second Floor, Rajouri Garden, New Delhi27 since year 2000........I do not know any lady by the name Smt. Anita Arora. There is no lady by the name of Smt. Sangeeta Bhalla. I know the defendant namely Sangeeta since last 45 years.........She lives in property No. J5/49A, first floor, Rajouri Garden, New Delhi27. In block J5, Rajouri Garden, only in house No. 49 the numbering of the houses is divided as 49A, 49B, 49C and so on. Vol. May be in others properties also the same numbering..........I have never seen any MCD record pertaining to the property No. J5/49 and J49A...........I am not aware whether she is residing in J5/49A, first floor as owner of the property or as a tenant of the property. I was not present during the signing or execution of lease deed between Smt. Anita Arora, the plaintiff herein and Ms. Sangeeta, the defendant herein........"
(iv) In the present suit as per plaintiff, plaintiff has let out the suit property i.e property No. J5/49, First Floor, Rajouri Garden, New Delhi consisting of two rooms set to the defendant at the monthly rent of Rs. 5,500/ on 02.01.2009 and time was mutually extended by mutual settlement till 30.11.2011 but defendant failed to vacate the suit property even after elapse of agreed time and plaintiff served a legal notice dated 03.09.2012 upon the defendant to vacate the property and defendant sent the reply dated 17.10.2012 but failed to vacate the suit property. Hence, the present suit. It is also argued on behalf of the plaintiff that admittedly rent agreement was executed between plaintiff and defendant and notice of termination of tenancy was also served upon the defendant and rate of rent Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.11/23 is Rs. 20,000/ per month, therefore, the plaintiff is entitled to the relief of possession. Further, defence of defendant is that the defendant is tenant of J5/49A, and not of J5/49 is not tenable as J5/49A and J5/49 are two different properties. Further, during examination, defendant has admitted the case of the plaintiff and defendant has produced one neighbor as DW2 but he has not deposed on the basis of any government record and the same is irrelevant being hearsay evidence. Further, defendant has not brought any government record to show that house number of the property in possession of defendant is J5/49A. Further, plaintiff has relied upon the judgments i.e Deepak Thirwani and another Vs. Lachman Das Man, 2013 (137) DRJ 355 and Vijay Gupta Vs. Manoj Mehta, 156(2009) Delhi Law Times 666.
(v) On the other hand, defendant has taken stand that the defendant is not Ms. Sangeeta Bhalla but she is Ms. Sangeeta only and she is residing in property bearing No. J5/49A, first Floor, consisting of two room set and no rent agreement regarding property No. J5/49 was ever entered into between parties and property No. J5/49 and property No. J5/49A are two different properties and there is no landlord tenant relationship between plaintiff and defendant regarding property no. J5/49. It is argued on behalf of the defendant that ownership of J5/49 and J5/49A are different and identification of properties is also different and Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.12/23 defendant has filed correct site plan. It is further argued that plaintiff has denied site plan of defendant and plaintiff has not proved her site plan and plaintiff has identified her property only as J5/49 and, therefore, even if decree is passed, then as per prayer of the plaintiff it will be passed for property No. J5/49 but the defendant is not in possession of the same and, therefore, decree is unexecutable. Further, defendant has not paid any rent for the property No. J5/49 and even the documents relied upon by the plaintiff are related to property No. J5/49 and not related to J5/49A in whose possession defendant is. Further, during cross examination, PW1 was neither aware about the boundaries, municipal number and structure of the property nor plaintiff was able to give details of the previous owner and further, plaintiff has admitted Ex. PW1/D1 wherein the property has possessed by the defendant has been clearly numbered as J5/49A and thus, the suit of the plaintiff is liable to be dismissed as the plaintiff has not established her case.
(vi) Arguments heard. Record perused.
(vii) It is well settled rule of law that in civil cases the burden of
proof upon the plaintiff is preponderance of probabilities i.e after considering the evidence lead by both the parties, the court has to weigh in whose favour the probabilities lie or in other words whose version seems to be more probable. Further, it is also well established legal principle that the onus to prove its case is always upon the plaintiff and the Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.13/23 suit of the plaintiff has to stand on its own legs.
(viii) There is no dispute that the property in possession of defendant is in dispute. As per plaintiff, it is property No. J5/49, First Floor consisting of two rooms set while it is property No. K5/49A, first floor. Execution of rent agreement Ex. PW1/1 and service of notice (Ex. PW1/4) and reply thereof (Ex. PW1/9) are also admitted facts
(ix) Now, defendant has taken contention that the name of the defendant is Ms. Sangeeta and Ms. Sangeeta Bhalla but she has admitted Ex. PW1/1 and Ex. PW1/4 wherein she has been mentioned Ms. Sangeeta Bhalla, therefore, this contention is not tenable as she herself has represented herself as Ms. Sangeeta Bhalla while the execution of Ex. PW1/1 and now she is estoped from taking this plea as the identity of the defendant is not in dispute nor she is disputing that plaintiff had not let out the property to her and property has been let out to one Ms. Sangeeta Bhalla who is a separate and different person.
(x) The basic defence of the defendant is that the property which has been let out to the defendant and in whose possession defendant is, it the property No. J5/49A and not J5/49.
(xi) Further, the relevant portion of Ex. PW1/1 may be reproduced here: "And whereas first party (plaintiff) is the true, absolute, lawful owner and in physical possession of property bearing No. Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.14/23 J5/49, Fist Floor, Back Portion Consisting of two rooms, kitchen, latrine and bathroom, area measuring 40 Sq. Yards situated at Rajouri Garden, New Delhi110027.
And where first party (plaintiff) has let out the above noted property bearing No. J5/49, first Floor Back Portion consisting of two rooms, kitchen, latrine and bathroom, area measuring 40 Sq. Yards, situated at Rajouri Garden, New Delhi110027, to the second party (defendant)/tenant, on a monthly rent of Rs. 5,500/ per month excluding water and electricity charges, for a period of 12 months for the use of residential purposes."
Thus, as per admitted rent agreement Ex. PW1/1, property No. J5/49, First Floor consisting of two room, kitchen, latrine and bathroom measuring 40 Sq. Yards was let to the defendant. The same fact has been mentioned in para No. 1 of the legal notice Ex. PW1/4 and in the reply Ex. PW1/9 filed by the defendant, it is mentioned in para No. 2 that "My clientess has become tenant on the premises No. J5/49, First Floor, Rajouri Garden, New Delhi on month by month tenancy after expiry of rent agreement as no further agreement had been executed between your clientess and my clientess after expiry of stipulated period of tenancy vested in Rent Agreement as your clientess had inducted my clientess in the premises above said as tenant continuously and received the rent of the same."
Thus, admittedly, the defendant has taken the premises No. Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.15/23 J5/49, First Floor, consisting of two room set on rent from the plaintiff.
(xii) Now, by virtue of Section 91 & 92 of the Indian Evidence Act, defendant is excluded from giving oral testimony regarding the identity of property because it is settled principle that the documents don't lie but human beings may lie. Moreover, defendant has not disputed the property No. in the reply (Ex. PW1/9) given to the plaintiff. Further, in the WS, defendant has stated that there is no landlord tenant relationship between the plaintiff and defendant while in the reply Ex. PW1/9, she has admitted the landlord tenant relationship between plaintiff and defendant qua property No. J549, First Floor, Rajouri Garden, New Delhi. During cross examination, defendant even admitted that "It is correct that I have paid rent to the landlady/Smt. Anita Arora/Plaintiff in compliance of rent agreement Ex. PW1/2."
(xiii) Further, even if the contention of the defendant is considered, admittedly, property No. J5/49 is measuring 160 Sq. Yards approximately and out of the said property, plaintiff has purchased only two room set measuring 40 Sq. Yards. Therefore, court can take judicial notice of the fact that if one big floor is divided into three or four portions and is sold out to different persons, then for the sake of identity, additional numbering of A and B can be added to the property number but in the present case that addition has not been made by MCD or by any government authority. Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.16/23 As far as the electricity and water bills are concerned, they may be a corroborative proof of house number but they can never be an independent proof of house number. Moreover, in the present case at the time of tenancy, defendant has admitted the house number. Now, after service of notice for termination of tenancy, defendant can not dispute the house number and by virtue of Section 116 of Indian Evidence, 1872, tenant is estoped from disputing the house number of property as well as ownership of the plaintiff.
(xiv) As far as the evidence of DW2/Manav Malik is concerned, he has not deposed on the basis of any document and has stated during cross examination that "As per my knowledge" but DW2 has not deposed on the basis of personal knowledge of the fact and his evidence appears to be hearsay evidence which is of no help to the defendant at all.
(xv) Further, defendant has argued that the decree in the present suit can not be executed as the property is not identifiable. From the above discussion, it is clear that plaintiff has let out the property bearing No. J5/49, first floor, back portion consisting of two room sets measuring 40 Sq. Yards to the defendant. Now, defendant has relied upon the Ex. PW1/D4 and plaintiff has relied upon Ex. PW1/2. Both the site plans show the construction of property similarly. Further, in both the site plans entrance has been shown from the back gali (below) and both parties have also admitted the same entrance and plaintiff has also admitted the same Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.17/23 during cross examination, therefore, Ex. PW1/D4 stands proved and, thus, it stands proved that defendant is tenant of property No. J5/49, Fist Floor, Back Portion consisting of two room set shown in red colour in Ex. PW1/D4 and thus, plaintiff has been able to prove the landlord tenant relationship between the parties.
(xvi) Admittedly, notice of termination of tenancy Ex. PW1/4 has been duly served upon the defendant and admittedly, the last rate of rent was Rs. 5,500/ per month and, therefore, the suit is not barred by the provisions of Delhi Rent Control Act.
(xvii) It is settled principle that in a case for possession on the basis of landlord tenant relationship, plaintiff is required to prove following three ingredients i.e
(a) Landlord tenant relationship exists between plaintiff and defendant.
(b) The tenancy has been duly terminated.
(c) The rate of rent is above Rs. 3,500/ and DRC Act has not
application to the suit property.
(xviii) In the present suit, plaintiff has been able to prove all the
three ingredients, therefore, plaintiff is entitled to the relief of possession of the property i.e property J5/49, First Floor, Back Portion consisting of two room set, kitchen, latrine, bathroom, measuring 40 Sq. Yards as shown Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.18/23 in red colour in Ex. PW1/D4. Accordingly, issue No. 1 and 2 are decided in favour of the plaintiff and against the defendant. (B) For the sake of convenience, issue No. 3 and 4 are discussed together: Issue No. 3: Whether the plaintiff is entitled to relief of recovery as prayed for in prayer clause B of the plaint?OPP.
Issue No. 4: Whether the plaintiff is entitled to relief of damages as prayed for in prayer clause C of the plaint?OPP.
(i) The onus to prove these issues are upon the plaintiff. The facts and evidence has already been discussed, therefore, the same is not repeated here. As per plaintiff, defendant has not paid rent since 01.12.2011 while memorandum of settlement Ex. PW1/3 was executed between plaintiff and defendant whereas the rate of rent was agreed as Rs. 20,000/ per month and, therefore, plaintiff has sought the relief of recovery of arrears of rent as well as damages @ Rs. 20,000/ per month w.e.f 01.12.2011 till the handing over the possession to the plaintiff.
(ii) On the other hand, in the WS, defendant has denied even the landlord tenant relationship and in examination in chief, defendant has stated that "She tendered the rent at the rate of Rs. 5,500/ per months to the owners" but has not disclosed the name of owner or landlord. But during cross examination, defendant has admitted that "premises was Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.19/23 given on rent to her by the plaintiff" and she has also admitted the execution of rent agreement (Ex. PW1/1) but defendant has denied execution of Ex. PW1/3 i.e memorandum of settlement dated 30.06.2011 whereby rent was increased from Rs. 5,500/ to Rs. 20,000/ per month. Thus, admittedly, the last rate of rent was Rs. 5,500/ per month and plaintiff has not lead any evidence to prove that the rate of rent was Rs. 20,000/ per month at any point of time nor plaintiff has proved Ex. PW1/13 property by calling any witness to the document. Therefore, the plaintiff can not claim rate of rent @ Rs. 20,000/ per month.
(iii) Further, as per plaintiff, defendant has not paid rent since 01.12.2011. The plaintiff has deposed the same fact in examination in chief and no cross examination of PW1 was held on this point. On the other hand, in WS defendant denied landlord tenant relationship while in the reply dated 17.10.2012 i.e Ex. PW1/9 to the legal notice of plaintiff, defendant has stated that she has paid rent till October, 2012 and thereafter, she tendered the rent of September by money order which was refused by the plaintiff but if the rent has been paid till October, 2012 then, there arises no question of tendering rent by way of money order for the month of September, 2012. Further, during cross examination, DW1 stated that "I have paid rent to the plaintiff till August, 2012 and thereafter, I sent a money order for the payment of rent but the plaintiff has not Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.20/23 received the same deliberately. Again said, I have paid rent till August, 2013."
(iv) Thus, it is clear that the defendant has taken contradictory plea in the reply Ex. PW1/9 and in the WS and in the cross examination and, therefore, the plea of the defendant seems improbable and and it can be concluded that plaintiff has proved that the defendant has not paid rent since 01.12.2011 and, therefore, plaintiff is entitled to recover the rent since 01.12.2011. As far as the rate of rent is concerned, admittedly, as per last rent agreement dated 02.01.2009, the rate of rent was Rs. 5,500/ per month. At this stage, it is relevant to discuss the judgment Shriram Pistons & Rings Ltd Vs. Basant Khatri, 190(2002) Delhi Law Times
769. In the case of M/s M.C. Aggarwal HUF Vs. M/s. Sahara India & Ors., 2011(183) DLT105 that even if a landlord has failed to lead evidence with respect to the prevalent rents, yet in such circumstances, this court can take judicial notice of increase in rent of metropolitan cities, more so in commercial areas that a 15% increase of rent every year should be payable by a tenant to a landlord. For each year thereafter as per the judgment of the M/s M.C. Agarwal HUF (supra) there will be a 15% increase over the last paid rent.
Therefore, in view of the above quoted judgments and in view of the fact that property is situated in Rajouri Garden which is one of the Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.21/23 posh and developed colonies of Delhi, plaintiff is entitled to mesne profits commencing from 01.12.2011 with a 15% yearly increase cumulatively i.e 15% increase which will be payable from second year, third year, fourth year etc after the termination of tenancy will be 15% increase of the mense profits on the total of mesne profits which are payable at the end of the first year, second year etc respectively.
(v) Further, the plaintiff is also entitled to simple interest @ 10% per annum increase of rent every year. Accordingly, the plaintiff is entitled to mesne profits commencing from 01.12.2011 with a 10% increase which will be payable from second year, third year, forth year etc after the termination of tenant will be 10% increase of the mesne profits on the total of mesne profits which are payable at the end of the first year, second year etc respectively.
(vi) Thus, in view of the above discussion, it is held that plaintiff is entitled to damages/mesne profits from 01.12.2011 with a 15% yearly cumulative increase on the rent lat paid i.e Rs. 5,500/ per month from the first year i.e from 01.12.2011 itself along with simple interest @ 10% per annum from the end of each illegal month of occupation and till the payment of arrears along with interest. Accordingly, issue No. 3 and 4 are decided in favour of the plaintiff and against the defendant.
10. As all the issues have been decided in favour of the plaintiff Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.22/23 and against the defendant, the suit is liable to be decreed. Accordingly, the suit is decreed in favour of the plaintiff and against the defendant and plaintiff is held entitled for the following reliefs:
(a) Decree of possession of the property No. J5/49, First Floor, Back Portion Consisting of two room set, kitchen, latrine, bathroom, measuring 40 Sq. Yards as shown in red colour in Ex. PW1/D4.
(b) A decree of damages/mesne profits from 01.02.2011 with a 15% yearly cumulative increase on last paid rent of Rs. 5,500/ from the first year i.e from 01.02.2011 along with simple interest @ 10% per annum from the end of each illegal month of occupation and till the payment of arrears.
(c) Cost of the suit is also awarded in favour of the plaintiff and against the defendant.
Decree Sheet be prepared after payment of court fee on arrears of rent/damages/mesne profits and on amount of interest till the date of judgment.
File be consigned to the record room after due compliance. Announced in the open court on 06th May, 2014 (PRABH DEEP KAUR) CIVIL JUDGE05(WEST) THC/DELHI/06.05.2014 Suit No. 284/12 Anita Arora Vs. Sangeta Bhalla Page No.23/23