Delhi District Court
6.2013 vs Sh. Dinesh Sharma on 1 June, 2013
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
Suit No. 405/2010.
01.06.2013.
Anu Gandhi @ Saurabh
S/o late Sh. Shyam Sunder,
C/o Shyam Vastar Bhandar,
WZ190, Shani Bazar,
Uttam Nagar, New Delhi 110059.
....Plaintiff
Versus
Sh. Dinesh Sharma,
S/o late Sh. Jagdish Lal,
r/o WZ 190A, Hastsal Road,
BlockA, Uttam Nagar, Delhi110059.
....Defendant
Date of institution of the suit : 02.07.2010.
Date of reserving Judgment : 31.05.2013.
Date of pronouncement : 01.06.2013.
Suit for Possession, Mandatory and Permanent Injunction, recovery of
mense profit/user charges/damages with interest.
AND
Suit No. 341/2010.
Dinesh Sharma,
Suit Nos. 405/10 & 341/10 Page..... 1/25
Son of Late Sh. Jagdish Lal,
r/o WZ190/A, IIIrd Floor,
Near Pooja Convent School,
Hastsal Road, Uttam Nagar,
New Delhi 110059.
....Plaintiff
Versus
Saurabh Gandhi,
S/o Shri Sham Gandhi,
(Sham Vastar Bhandar),
WZ190, Shani Bazar Road,
Near Hanuman Mandir,
Uttam Nagar 110059.
....Defendant
Date of institution of the suit : 12.05.2010.
Date of reserving Judgment : 31.05.2013.
Date of pronouncement : 01.06.2013.
Suit for Permanent injunction.
JUDGMENT
1. Vide this judgment, I shall decide a suit for possession, mandatory and permanent injunction, recovery of mense profit/user charges/damages with interest filed by Anu Gandhi @ Saurabh having suit no. 405/2010. Vide this judgment, I shall also decided a suit for permanent injunction filed by Sh. Dinesh Sharma having suit no. 341/2010. Both the suits were clubbed together for the purpose of recording evidence and suit bearing Suit Nos. 405/10 & 341/10 Page..... 2/25 no. 405/10 was ordered to be treated as main suit. During arguments, it is contended by the ld. counsels for the parties that both the suits are in respect of same properties and vide common judgment both the suits can be disposed off together.
2. The essential facts for disposal of suit for possession, mandatory and permanent injunction, recovery of mense profit/user charges/damages with interest filed by Anu Gandhi @ Saurabh having suit no. 405/2010 are as that the plaintiff is the landlord of the property bearing No. WZ190A, Shani Bazar, Near Pooja Convent School, Uttam Nagar, BlockB, New Delhi. The suit property is in unauthorized and illegal occupation of the defendant, as shown in red in the site plan. The deceased father of the plaintiff namely late Sh. Shyam Sunder has only permitted the defendant to keep his goods and materials for few days on the third floor of the WZ190A, Shani Bazar, Near Pooja Convent School, Uttam Nagar, BlockB, New Delhi (hereinafter will be referred as suit property). Neither any rent agreement or tenancy was created in favour of the defendant nor he has paid any mesne profit/damages for use and occupation of the said property. Late Sh. Shyam Sunder before his death asked the defendant to vacate the aforesaid premises, number of times, however, defendant has failed to do so. Sh. Shyam Sunder died on Suit Nos. 405/10 & 341/10 Page..... 3/25 05.07.2007. Thereafter, the defendant taking advantage of this unfortunate incident and remained in illegal and unauthorized possession of the suit property without paying mesne profit and damages. The plaintiff asked the defendant to vacate the premises. The plaintiff served a legal notice dated 28.05.2010. As per the plaintiff, defendant is liable to vacate the suit premises in question and to hand over its actual, physical and vacant possession to the plaintiff. The defendant has failed and neglected to vacate and hand over peaceful possession of the said premises to the plaintiff. As per the plaintiff, the mesne profit, unauthorized occupation charges/ user charges of the similar property in the locality is not less than Rs. 5,000/ per month since 01.07.2007. The defendant is liable to pay mesne profits/user charges @ Rs. 5,000/ per month for the unauthorized and illegal use and occupation of the aforesaid tenanted premises from 1.07.2007 along with interest @ 24% per annum. As per the plaintiff, the defendant is also liable to pay mesne profits/ user chrges at the enhanced rate of Rs. 7000/ per month with effect from 01.07.2010, as market rate of the rent prevailing in the said locality has been increased. The plaintiff also claimed damages from 01.07.2007 till the defendant hands over vacant possession to the plaintiff. The plaintiff prayed for a decree of mandatory injunction directing the defendant to hand over the actual, physical and vacant Suit Nos. 405/10 & 341/10 Page..... 4/25 possession of the suit property to him. The plaintiff also prayed for a decree of permanent injunction restraining him from creating any third party interest, lien, lease, encumbrance or damages in respect of the suit property. The plaintiff also claimed a decree for recovery of Rs. 1,80,000/ as monthly mesne profit, damages and user charges of the suit property from 01.07.2007 till 01.07.2010. The plaintiff also claimed mesne profit, user/unauthorized occupation charges for the unauthorized and illegal occupation at the enhanced rate of Rs. 7,000/ per month from 01.07.2010 till the defendant hands over the vacant possession of the suit property to him with pendentelite and future interest @ 24% per annum. The plaintiff also prayed for a decree of possession in respect of the suit property.
3. The defendant filed written statement taking preliminary objections that the suit is barred as per the provisions of Delhi Rent Control Act. The suit is not maintainable. The plaintiff has not come to the court with clean hands. The plaintiff is landlord of the defendant in respect of two rooms, kitchen toilet, bathroom etc. situated on the 3rd floor forming part of property no. WZ190/A, Near Pooja Convent School, Hastsal Road, Uttam Nagar, New Delhi. The defendant has taken the suit premises on rent from the plaintiff for more than five years back and has been Suit Nos. 405/10 & 341/10 Page..... 5/25 residing in the said premises as tenant under the plaintiff along with his family members. The rate of rent of the premises is Rs. 800/ per month excluding electricity and water charges. Initially, the rent was Rs. 500/ per month which was enhanced from time to time and the present rate of rent of the tenanted premises is Rs. 800/ per month. The defendant has paid the rent to the plaintiff upto the month of April, 2010. On 02.05.2010, the defendant went to the plaintiff to pay the rent for the month of May, 2010 but the plaintiff refused to accept the same and asked the defendant to enhance the rate of rent from Rs. 800/ to Rs. 2000/ per month or to vacate the premises. Again on 06.05.2010 at about 7:30 pm., the plaintiff along with five other goonda type of persons visited the demised premises and forcibly entered into the premises where the defendant was residing as tenant along with his family members and threatened the defendant to vacate the tenanted premises within one week or the goods of the defendant will be thrown out. The plaintiff along with henchmen started throwing the goods of the defendant from the tenanted premises out side the tenanted premises. When the defendant and his family members made hue and cry then the passersby gathered and the plaintiff and his associates could not execute the threat given to the defendant. The defendant also approached the concerned police station but they refused to lodge any complaint. In Suit Nos. 405/10 & 341/10 Page..... 6/25 reply on merits, it is averred that the premises was let out by the plaintiff to the defendant. Similar averments were made in reply on merits. Dismissal of the suit is prayed by the defendant.
4. The plaintiff filed replication to the written statement filed by the defendant and controverted the allegations made in the written statement and further reaffirmed the averments made in the plaint.
5. The essential facts for disposal of suit for permanent injunction filed by Dinesh Sharma having suit no. 341/2010 are as that the plaintiff is tenant under the defendant in respect of two rooms, kitchen, toilet, bathroom etc. situated on the 3rd floor forming part of property no. WZ190/A, Near Pooja Convent School, Hastsal Road, Uttam Nagar, New Delhi (hereinafter will be referred as suit property), which is shown in red colour in the site plan. The defendant is landlord in respect of the suit property. The plaintiff has taken on rent the said premises in question from the defendant for more than five years back and has been residing in the said premises as tenant under the defendant alongwith his family members and rent of the premises is Rs. 800/ per month excluding electricity and water charges. Initially, the rate of rent was Rs. 500/ per month which was enhanced from time to time and the present Suit Nos. 405/10 & 341/10 Page..... 7/25 rate of rent of the tenanted premises is Rs. 800/ per month. The plaintiff has paid rent to the defendant up to the month of April, 2010. It is averred that on 02.05.2010, when the plaintiff went to the defendant to pay the rent for the month of May, 2010, the defendant refused to accept the same and asked the plaintiff to enhance the rate of rent from Rs. 800/ to Rs. 2000/per month or to vacate the premises. It is averred that on on 06.05.2010 at about 7:30 pm., the defendant along with five other goonda type of persons visited the demised premises and forcibly entered into the premises where the plaintiff was residing as tenant along with his family members and threatened to vacate the tenanted premises within one week or the goods of the plaintiff will be thrown out. The defendant along with henchmen started throwing the goods of the plaintiff from the tenanted premises out side the tenanted premises. When the plaintiff and his family members made hue and cry then the passers by gathered and the defendant and his associates could not execute the threat given to the plaintiff. Thereafter, the plaintiff went to the concerned police station but the police officials refused to lodge any complaint against the defendant. It is prayed by the plaintiff that defendant be restrained from dispossessing the plaintiff from the tenanted premises i.e. in respect of two rooms, kitchen, toilet, bathroom, etc. situated on the 3rd floor forming part of property no. WZ190/A, Near Pooja Convent School, Hastsal Suit Nos. 405/10 & 341/10 Page..... 8/25 Road, Uttam Nagar, New Delhi, which is shown in red colour in the site plan without due process of law.
6. The defendant Saurabh Gandhi filed written statement averring preliminary submissions that the defendant is landlord of the plaintiff. The deceased father of the defendant late Sh. Shyam Sunder has only permitted the plaintiff to keep his goods and materials for few days on the third floor of property bearing no. WZ190/A, Shani Bazar, Near Pooja Convent School, Uttam Nagar, BlockB, New Delhi. The plaintiff is in illegal and unauthorized possession of the suit property. The defendant asked the plaintiff to vacate the premises many times but he did not vacate the same. Thereafter, the defendant served a legal notice dated 28.05.2010 to the plaintiff. In reply on preliminary objections, it is averred that there is no cause of action to file the present suit against the defendant. The suit is not maintainable. The plaintiff is not entitled to any relief. In reply on merits, averments of the plaint were denied. Dismissal of the suit is prayed by the defendant.
7. The plaintiff filed replication to the written statement filed by the defendant and controverted the allegations made in the written statement and further reaffirmed the averments made in the plaint.
Suit Nos. 405/10 & 341/10 Page..... 9/25
8. Vide order dated 01.06.2011, following issues were framed by my Ld. Predecessor in suit No. 405/10, which are as under: (1) Whether the plaintiff is entitled to relief of possession as prayed for ? (OPP) (2) Whether the plaintiff is entitled for relief of mandatory injunction as prayed for ? (OPP) (3) Whether the plaintiff is entitled for relief of permanent injunction as prayed for ? (OPP) (4) Whether the plaintiff is entitled to recovery of Rs. 1,80,000/ along with interest as prayed for ? (OPP) (5) Whether the plaintiff is entitled to future damages, if yes, at what rate and for what period ? (OPP) (6) Whether the suit is barred by DRC Act ? (OPD) (7) Relief.
Following issues were framed by my Ld. Predecessor in suit No. 341/10, which are as under: (1) Whether plaintiff is entitled for relief of permanent injunction as prayed for ? (OPP) (2) Whether there is no relationship of landlord and tenant between the parties ? (OPD) (3) Relief.
Suit Nos. 405/10 & 341/10 Page..... 10/25
9. Vide the same order i.e. order 01.06.2011, both the suits were ordered to be clubbed for the purpose of recording evidence and suit No. 405/2010 shall be the main suit in which evidence will be recorded.
10. In evidence in suit no. 405/2010, plaintiff examined himself as PW1.
This witness filed affidavit on the lines of the plaint and proved site plan as Ex. PW1/B. This witness also proved the death certificate of late Sh. Shyam Sunder as Ex. PW1/B, legal notice dated 28.05.2010 proved as Ex. PW1/C, its registered A/D receipt, UPC receipt and duly refused/ denied envelop with registered A/D for service of legal notice are proved as Ex. PW1/D to Ex. PW1/F. The plaintiff has also examined Sh. Virender Gulati, S/o Sh. Raj Kumar Gulati as PW2. This witness also averred that the father of the plaintiff late Sh. Shyam Sunder has only permitted the defendant to keep his goods and material for few days at the suit property and no tenancy was created. This witness also stated that similar property in the locality can fetch charges @ Rs. 5000/ per month since 01.07.2007 to 30.06.2010 and with effect from 01.07.2010 mesne profits/user charges of the said premises is not less then Rs. 7000/ per month. The plaintiff has also examined Sh. Vinay Bholla property dealer of M/s. Diya Properties. This witness stated that he is a property Suit Nos. 405/10 & 341/10 Page..... 11/25 dealer and neighbour of the plaintiff. As per this witness, plaintiff is landlord of the suit property and third floor of the suit property is in unauthorized and illegal occupation of the defendant. This witness also stated that current market rent of the property similar like of the suit property in the locality is not less than Rs. 7000/ per month.
On the other defendant, Sh. Dinesh Sharma, examined himself as DW1 and filed affidavit on the lines of the written statement. Sh. Hari Shankar Gupta, S/o late Sh. Prahlad Ram Gupta was examined as DW2. This witness has stated that he is tenant under the plaintiff in respect of one room set in the ground floor and one room set on the second floor portion forming part of property No. WZ190, Shani Bazar, Uttam Nagar, New Delhi for the last more than 12 years. This witness stated that Sh. Dinesh Sharma had taken on rent the suit property.
11. I have heard ld. counsels for both the parties and perused the record. My issuewise findings are as under: First of all, I am deciding issue no. 6 framed in suit No. 405/2010 and issue no. 2 framed in suit No. 341/2010.
ISSUE No. 6 in suit No. 405/10 and ISSUE No. 2 in suit No. 341/10.
Suit Nos. 405/10 & 341/10 Page..... 12/25 (Both the issues are interconnected and can be decided together) ( Issue No. 6 in Suit No. 405/10 - Whether the suit is barred by DRC Act ? OPD) (Issue no. 2 in Suit No. 341/10 Whether there is no relationship of landlord and tenant between the parties ? OPD)
12. The burden to prove issue no. 6 is on Sh. Dinesh Sharma defendant in suit No. 405/10 and burden to prove issue no. 2 is on Sh. Saurabh Gandhi @ Anu Gandhi in suit No. 341/10. For the convenience parties are referred as parties in Suit No. 405/2010. It is contention of the defendant that he is tenant under the plaintiff and the plaintiff in the plaint has clearly mentioned that he is landlord of the suit property. Ld. counsel for the defendant has drawn my attention towards para no. 1 of the plaint, where it is mentioned by the plaintiff that he is landlord of the suit property. It is also stated that the defendant Sh. Dinesh Sharma in his written statement in suit no. 405/2010 mentioned that he was paying rent @ Rs. 500/ per month. The defendant has not brought any cogent evidence to show that he has paid any rent to the plaintiff. It is case of the defendant that he is tenant of the plaintiff @ Rs. 500/ per month and rent was enhanced from time to time to Rs. 800/ per month. DW1 in the cross examination clearly admitted that there was no rent agreement Suit Nos. 405/10 & 341/10 Page..... 13/25 executed by him. This witness also admitted that no rent or amount was ever tendered by him by any written form i.e. cheque/money order/draft etc. to late Sh. Shyam Sunder or the plaintiff. This witness stated that Sh. Shyam Sunder was alive, when he entered in the suit property for the first time and he stated volunatrily that the suit premises was taken from late Sh. Shyam Sunder, father of the plaintiff. This witness admitted that he has taken the suit property from the father of the plaintiff but in the written statement it is averred that he is tenant under the plaintiff, Sh. Anu Gandhi. This witness also admitted that father of the plaintiff late Sh. Shyam Sunder never asked for any amount from him in lieu of his occupation of the suit property. Thus, it is corroborating the version of the plaintiff that father of the plaintiff has given the suit property to the defendant without any rent for some days. This witness in clear term admitted that Sh. Shyam Sunder was owner and landlord of the entire property No. WZ190/A, Shani Bazar, Uttam Nagar, New Delhi. DW2 also occupied as tenant under Sh. Anu Gandhi @ Saurabh in respect of one room set in the ground floor and one room set on the second floor portion forming part of property No. WZ190, Shani Bazar, Uttam Nagar, New Delhi. This witness stated that when occupied one room set in the ground floor and one room set on the Suit Nos. 405/10 & 341/10 Page..... 14/25 second floor portion forming part of property No. WZ190, Shani Bazar, Uttam Nagar, New Delhi as tenant, the suit property was under the ownership of late Sh. Shyam Sunder. Thus, both the witnesses i.e. DW1 and DW2 admitted that father of the plaintiff was owner of the property. Thus, contention of the counsel for the defendant holds no water that the plaintiff is not entitled to any relief and the plaintiff is not the owner. Moreover, the plaintiff has placed on record photocopy of the GPA executed in favour of his father. As per Section 116 of the Indian Evidence Act "No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." As the defendant is not able to place on record any rent agreement nor he is able to prove that he was paying any rent to the plaintiff and it is admitted by the defendant in the cross examination that after the alleged threats in May, 2009 or filing of the present suit in July, 2010, he has not tendered any rent in respect of the suit property. Particularly, when he has admitted that he was permitted by the father of the plaintiff in the suit Suit Nos. 405/10 & 341/10 Page..... 15/25 property. Thus, the version of the defendant is in contrast with his version in the written statement or in his suit that he is tenant under the plaintiff. I am of the view that Anu Gandhi @ Saurabh is able to prove issue no. 2 in suit no. 341/10 and Sh. Dinesh Sharma is not able to prove issue no. 6 in suit no. 405/10. Thus, both the issues are decided in favour of Sh. Anu Gandhi @ Saurabh and against Sh. Dinesh Sharma.
ISSUE Nos. 1 & 2 in suit No. 405/10 (Both the issues are interconnected and can be decided together) ( Issue No. 1 - Whether the plaintiff is entitled to relief of possession as prayed for ? OPP) (Issue no. 2 - Whether the plaintiff is entitled for relief of mandatory injunction as prayed for ? OPP)
13. The burden to prove both the issues in on the plaintiff, Sh. Anu Gandhi.
To prove both the issues, plaintiff stepped in the witness box and filed affidavit on the lines of the plaint. The plaintiff has also proved on record legal notice dated 28.05.2010 and this notice was sent through registered A/D post. The registered A/D receipt, U.P.C receipt and the duly refused envelop with registered A/D for service of legal notice are proved as Ex. PW1/D to Ex. PW1/F, where it is mentioned that "bar bar jane per bhi Suit Nos. 405/10 & 341/10 Page..... 16/25 praptkarta nahi milta". The postman visited the premises from 01.06.2010 to 07.06.2010. The UPC cover not received back. DW1 in the cross examination clearly admitted that notice Ex. PW1/C bears his correct address at point B. This witness also admitted that Ex. PW1/E are his correct address. No suggestion was given by the defendant that he has not received legal notice. Moreover, DW1 in the cross examination has clearly stated that he do not remember whether he has received the envelop in lieu of Ex. PW1/E or not. Again question was put to the defendant that Have you replied Ex. PW1/C ? The witness given answer that he did not remember whether he has received Ex. PW1/C or not. Thus, the defendant has not denied specifically that he has not received the legal notice. He only stated that he do not remember whether he has received such envelop in lieu of Ex. PW1/E or not. Thus, the legal notice is duly served upon the defendant.
14. Moreover, in a suit for unauthorized occupation no notice is required as held by Hon'ble High Court in judgment in RFA No. 179/2011 in case titled as M/s. Jeevan Diesels & Electricals Ltd. Vs. M/s. Jasbir Singh Chadha (Huf) & Anr. In this judgment Hon'ble Justice Valmiki J. Mehta has held that no notice is required for terminating the tenancy Suit Nos. 405/10 & 341/10 Page..... 17/25 in suit for eviction. In this judgment reliance on the judgment of Hon'ble Supreme Court of India titled Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) 2008 (2) SCC 728 was placed and it was held by the Hon'ble Supreme Court that the tenancy would stand terminated under general law on filing of a suit for eviction. In this judgment, it is also held that accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant. In the present case even if we assume the version of the defendant that he is tenant under the plaintiff and the legal notice was not served upon. Though, he is not able to prove that he is tenant under the plaintiff. I am of the view that even filing of the suit for possession will terminate the tenancy. Both DW1 and DW2 admitted that the plaintiff is owner of the suit property. DW2 also admitted that father of the plaintiff was owner of the suit property.
15. It is contended by the counsel for the defendant that the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction. It Suit Nos. 405/10 & 341/10 Page..... 18/25 is contended that the plaintiff in the plaint has averred that the defendant is in unauthorized occupation and the plaintiff has valued the suit for the purpose of court fees as Rs. 5000/ and has valued the suit for one year rent. From the testimony of DW1, it is clear that suit premises was given by the father of the plaintiff to the defendant and the witness in clear terms admitted that Sh. Shyam Sunder never asked any amount. Thus, it suggests that no amount was fixed and the defendant was permitted to keep his goods or materials for some days. The plaintiff cannot be asked to value the suit property on the market value of the suit property when the defendant is an unauthorized occupant in the suit property. Moreover, the defendant has not adduced any evidence to show that the suit property is amounting to Rs. 4 lacs. The affidavit of DW1 is silent in respect of value of the suit property. Thus, the value of the suit property put forwards by the plaintiff for the purpose of court fees is accepted and this contention of the counsel for the defendant carries not force. I am of the view that the plaintiff is able to prove both the issues and both the issues are decided in favour of the plaintiff i.e Sh. Anu Gandhi and against the defendant i.e. Sh. Dinesh Sharma. ISSUE No. 3 in suit No. 405/10 (Whether the plaintiff is entitled for Suit Nos. 405/10 & 341/10 Page..... 19/25 relief of permanent injunction, as prayed for ? OPP)
16. The burden to prove this issue is on the plaintiff. As the plaintiff is able to prove that the defendant is unauthorized occupant and he is also able to prove that his father was owner of the suit property and after death of his father, he is owner of the suit property. I am of the view that the plaintiff is also entitled for relief of permanent injunction. Thus, this issue is decided in favour of the plaintiff and against the defendant. ISSUE No. 4 in suit No. 405/10 (Whether the plaintiff is entitled to recovery of Rs. 1,80,000/ along with interest as prayed for ? OPP)
17. The burden to prove this issue is on the plaintiff. To prove this issue, plaintiff stepped in the witness box as PW1 and filed affidavit on the lines of the plaint. This witness categorically stated that if similar property like the suit property in the locality can be given on rent same can fetch mesne profit of Rs. 5000/ per month. No suggestion was given to PW1 that the premises cannot fetch Rs. 5,000/ per month from 01.07.2007 to 30.06.2010. The plaintiff also produced Sh. Virender Gulati, S/o Sh. Raj Kumar Gulati as PW2. This witness in clear terms Suit Nos. 405/10 & 341/10 Page..... 20/25 admitted that mesne profit, unauthorized occupation charge/ user charges for use and occupation of the property similar to the suit property in the locality is not less than Rs. 5000/ per month since 01.07.2007 till 30.06.2010. The plaintiff has also produced Sh. Vinay Bholla, who is property dealer, who stated that current market rate of a property similarly situated like of the suit property in the locality is not less than Rs. 7000/ per month. No suggestion was given by the defendant to the witness. Moreover, defendant has not adduced any evidence to counter the evidence of the plaintiff. DW1 in the cross examination clearly stated that he did not know whether the first floor's occupants hails from Assam and his name is Alok Dass and he has taken the premises only last month @ Rs. 6,000/ per month. DW2 also stated that he do not know that on the first floor of the said adjacent house, Sh. Alok Das is residing or he is making payment of Rs. 6,000/ per month to his landlord Sh. Vijay Gandhi. The defendant has not produced any witness to prove that the property cannot fetch rent of Rs. 5000/ per month from 01.07.2007 to 30.06.2010. I am of the view that the plaintiff has reasonably claimed the rent of Rs. 5,000/ per month from 01.07.2007 till 30.06.2010. I am of the veiw that the plaintiff is able to prove this issue. Thus, this issue is decided in favour of Sh. Anu Gandhi, plaintiff and Suit Nos. 405/10 & 341/10 Page..... 21/25 against Sh. Dinesh Sharma, defendant.
ISSUE No. 5 ( Whether the plaintiff is entitled to future damages, if yes, at what rate and for what period ? OPP)
18. The burden to prove this issue is on the plaintiff. To prove the present market rate of rent, plaintiff produced PW3, who is a property dealer and filed affidavit. This witness stated in clear terms in para no. 4 of his affidavit that the current market rent of a property similarly situated like of the suit property in the locality is not less than Rs. 7,000/ per month. No suggestion was given to this witness by this counsel for the defendant that premises cannot fetch damages @ Rs. 7,000/ per month. I am of the view that the suit property consist of two rooms, kitchen, toilet, bathroom etc. and similar property like suit property in the locality can fetch rent @ Rs. 7,000/ per month and this amount is reasonably claimed by the plaintiff. Thus, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No. 1 in suit No. 341/10 ( Whether the plaintiff is entitled to relief of permanent injunction as prayed for ? OPP) Suit Nos. 405/10 & 341/10 Page..... 22/25
19. The burden to prove this issue is on the plaintiff, Sh. Dinesh Sharma. It is mentioned in the plaint by Sh. Dinesh Sharma that on 02.05.2010, Sh. Saurabh Gandhi had asked the plaintiff to enhance the rent from Rs. 800/ to Rs. 2000/ per month or to vacate the premises. It is also case of Sh. Dinesh Sharma that on 06.05.2010 at about 7:30 pm, Sh. Saurabh Gandhi along with five other goonda elements visited the premises and forcibly entered into the premises and gave threats to the plaintiff to vacate the premises within one week or they will throw the goods of the plaintiff from the tenanted premises. The defendant along with henchmen started to throw the goods of the plaintiff from the tenanted premises out side the tenanted premises. When the plaintiff and his family members made hue and cry then the passers by gathered and the defendant and his associates could not execute the threat given to the plaintiff and they extended threats of forcible dispossession. It is strange enough that the plaintiff has not given any written complaint to the concerned police station. Thus, it is not proved that any threat was given by Sh. Saurabh Gandhi to Dinesh Sharma on 06.05.2010. I am of the view that the Sh. Dinesh Sharma is not able to prove this issue and this issue is decided against Sh. Dinesh Sharma and in favour of Sh. Saurabh Gandhi.
Suit Nos. 405/10 & 341/10 Page..... 23/25
RELIEF.
In view of my findings on the aforesaid issues, the suit bearing no. 341/2010 is dismissed, as same is without any merits, with no order as to cost and suit bearing no. 405/2010 is decreed. A decree of possession in suit no. 405/2010 in respect of suit property i.e. 3rd floor of the WZ190/A, Shani Bazar, Near Pooja Convent School, Uttam Nagar, BlockB, New Delhi110059, as shown in red colour in the site plan is passed in favour of the plaintiff and against the defendant. A decree of mandatory injunction in suit No. 405/2010 is passed in favour of the plaintiff and against the defendant directing the defendant to vacate and hand over the physical and vacant possession of suit property i.e. 3rd floor of the WZ190/A, Shani Bazar, Near Pooja Convent School, Uttam Nagar, BlockB, New Delhi110059, as shown in red colour in the site plan. A decree of permanent injunction in suit no. 405/10 is also passed restraining the defendant not to create any third party interest in the suit property. A decree of Rs. 1,80,000/ in suit no. 405/10 is passed in favour of the plaintiff against the mesne profit and user charges/ unauthorized occupation of the suit property since 01.07.2007 to 30.06.2010 @ Rs. 5000/ per month. The plaintiff is also entitled to Suit Nos. 405/10 & 341/10 Page..... 24/25 interest @ 15% per annum on the amount of Rs. 1,80,000/ from 30.06.2010, when the amount was due till realization. A decree of damages in suit no. 405/2010 at the enhanced rate of Rs. 7,000/ per month from 01.07.2010 till the defendant hand over the possession of the suit property is passed in favour of the plaintiff. The plaintiff is also entitled to future interest @ 6% per annum. The plaintiff is also entitled to the cost of the suit. Decree shall only be executable if the plaintiff pay the requisite court fees, if any on damages. Decree sheet be prepared accordingly. File be consigned to record room, after necessary compliance.
Announced in the open court (NARESH KR. MALHOTRA)
on 01.06.2013
. SCJ/RC(WEST)/ DELHI
Suit Nos. 405/10 & 341/10 Page..... 25/25