Delhi District Court
Nina Bhalla vs Lorraine Monte on 4 May, 2024
CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte
In the Court of Ms. Neetu Nagar, Judge Small Causes Court cum
Additional Senior Civil Judge cum Guardian Judge, South East
District, Saket Courts, New Delhi
Civil Suit No. : 467/2018
CNR No. : DLSE03-000710-2018
In the matter of:
Smt. Nina Bhalla
W/o Shri Pawan Bhalla
R/o 341, New Jawahar Nagar,
Jalandhar, Punjab .... Plaintiff
VERSUS
Ms. Lorraine Monte
D/o Late Sh. L.K. Monte
R/o C-45, Second Floor,
Housing Society, South Extension Part-I,
New Delhi-110049. .... Defendants
********
Date of Institution : 12.04.2018
Final arguments heard on : 06.02.2024
Judgment pronounced on : 04.05.2024
********
SUIT FOR EJECTMENT, CONSEQUENTIAL RELIEF OF
POSSESSION, RECOVERY OF DAMAGES/ MESNE PROFITS
AND PERMANENT INJUNCTION AGAINST THE
DEFENDANT
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed by the plaintiff seeking ejectment, consequential relief of possession, recovery of damages/mesne profits and permanent injunction against the defendant.
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 1 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte PLAINT
2. Briefly the case of the plaintiff is that plaintiff is the daughter of late Smt. Swaran Beri w/o late Sh. Rajinder Pal Beri, the erstwhile owner of property bearing no. C-45, Housing Society, South Extension Part-I, New Delhi-110049 (in short "suit property"). Smt. Swaran Beri expired on 24.10.2017 at Jalandhar, while she was in the care and custody of the plaintiff. It is stated that during her lifetime, Smt. Swaran Beri had executed a Will in favour of the plaintiff, bequeathing the properties including the suit property in her favour.
2.1 It is submitted that the plaintiff found the defendant in possession of the second floor of the suit property. On inquiry, defendant claimed to be the tenant thereof by virtue of a rent deed dated 22.02.2017. It is alleged that the rent deed was a forged document because the signatures thereon do not tally with that of the plaintiff's mother and, the rate of rent of the similar properties being around 75,000-80,000/-, the same could not have been let out at a meager amount of Rs. 15,000/-. Hence, the plaintiff asked the defendant to vacate the suit property, since the term of tenancy, even according to the said tenancy agreement had come to an end. However, defendant did not vacate the suit property. Hence, the plaintiff was constrained to terminate the tenancy, calling upon defendant to hand over the vacant and peaceful possession of suit property through a legal notice dated 09.02.2018 but the defendant failed to vacate the same despite service of legal notice. Hence, the present suit has been filed, praying for following reliefs:
a) Pass a decree of ejectment of the defendant, her legal heirs, assignees, representatives and all or any claiming through her, from the suit property i.e. second floor of property bearing No. C-45, Housing (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 2 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte Society, South Extension Part-I, New Delhi 110049, more precisely shown in red colour in the site plan attached with the plaint and thereby directing the defendant to handover the peaceful and vacant possession of the suit property described hereinabove to the Plaintiff.
b) Pass a decree of recovery of damages/mesne profits of Rs. 75,000/- for the period of March 2018 and further decree towards pendent lite and future damages /mesne profits @ Rs. 75,000/- per month, along with interest @ 18% p.a. till the handing over of the peaceful and vacant possession of the suit property to the Plaintiff
c) Pass a decree of permanent injunction in favour of the Plaintiff and against the defendant, thereby restraining the defendant, her family members, heirs, attorney(s). agents, representatives etc. from parting with the possession or creating any third party interest in respect of the suit property ie. property bearing No. C- 45. Housing Society, South Extension Part-1, New Delhi 110049, which is more particularly shown in red colour in the site plan attached with the plaint SUMMONING OF DEFENDANT AND CHAIN OF SUBSEQUENT EVENTS
3. Upon receipt of the plaint, summons of the suit for settlement of issues were directed to be issued to the defendant vide order dated 08.05.2018. The defendant was duly served with the summons and entered appearance through counsel on 13.11.2018.
WRITTEN STATEMENT FILED ON BEHALF OF DEFENDANT
4. Written statement has been filed on behalf of defendant wherein it is stated that the plaintiff is not the owner of the suit property and therefore, she has no locus standi to file the present suit (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 3 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte against the defendant. It is further stated that there is no privity of contract between the plaintiff and the defendant. 4.1 It is further submitted that the plaintiff has sought the relief of possession against the defendant and is therefore liable to pay advalorem Court fees on the market value of the suit property under section 7 (iv) (c) read with section 7(v) of the Court fees Act and also the suit is liable to be dismissed under the provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908.
4.2 It is further stated that the Plaintiff has not come to this Court with clean hands and is guilty of suppression of material facts. It is submitted that the defendant has been residing in the suit property since the year 2004. Smt. Swaran Beri only mentioned about having one natural born child, a son named Mr. Rippan Kumar Beri. It appears that the plaintiff has cooked up the story just to grab the suit property, on the basis of the alleged Will dated 10.5.2013 which appears to be a sham document, null, non est and void ab-initio. 4.3 It is averred that Smt. Swaran Beri was in the 'custody' of the plaintiff, albeit in a forced custody. The defendant is a tenant in respect of the entire second floor of the suit property by virtue of Lcase Deed executed in her favour by Smt. Swaran Beri on 21.2.2004 i.e., over 14 years ago. The tenancy of the defendant in respect of the suit property was thereafter extended from time to time by on mutually agreed terms by way of written agreements executed by Smt. Swaran Beri and the defendant, lastly by way of the Rent Deed dated 22.2.2017. Over a period of time, a close bond formed between Smt. Swaran Beri and the defendant. The defendant infact became the sole care-giver of Smt. Swaran Beri who was living in the suit property all by herself after the death of her husband and became totally dependent upon the defendant who cared for and looked after her. During the (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 4 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte entire period, the defendant never saw the plaintiff visit Smt. Swaran Beri. In April 2017, Smt. Swaran Beri fell seriously ill due to age related problems and the defendant had to rush her to the Moolchand Hospital. Later, after her release from hospital, the defendant brought Smt. Swaran Beri back to her home. However, again in end of April/May, 2017, Smt. Swaran Beri again fell seriously ill and the defendant along with neighbour had to rush her to the Primus hospital where she was once again admitted in the ICU. The plaintiff came to the hospital after about 4 or 5 days and insisted on taking Smt. Swaran Beri with her to Jalandhar, Punjab. Without bothering about her precarious health condition, the plaintiff, against the doctor's advice (LAMA), forcibly took away Smt. Swaran Beri with her. It is averred that the defendant continued to deposit the rent in the bank account of Smt. Swaran Beri till January 2018. It is pleaded that the defendant became aware about the death of Smt. Swaran Beri when the plaintiff and her accomplices came on 02.02.2018 and threatened to throw out the defendant from the suit property. The defendant later learnt that the bank account of Smt. Swaran Beri was closed in March, 2018. 4.4 It is submitted that Smt. Swaran Beri would once in a while visit Jalandhar (Punjab), where her husband owned farmlands. It is averred that the said purported Will is a forged and fabricated document. No Probate of the said alleged Will of Smt. Swaran Beri has been obtained by the plaintiff and the purported Will has been witnessed by none other than the daughter of the plaintiff.
REJOINDER
5. Rejoinder was filed on behalf of the plaintiff wherein she denied the averments of the written statement and reaffirmed the contents of the plaint. It is reiterated that plaintiff is the owner of the suit property vide a valid and genuine Will executed by Smt. Swarn (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 5 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte Beri during her lifetime in sound disposing mind in the presence of the witnesses thereby bequeathing her movable and immovable property in favour of the plaintiff being her natural born daughter and the said Will has been duly registered in the office of Sub-Registrar Jalandhar vide document no. 240 entered in Book no. 3 on 10.05.2013. More so, plaintiff has been declared owner of the property situated at Jagraon, Punjab vide Decree dated 29.05.2018 passed by the Court of Additional District Judge, Sri Ganga Nagar revealing that the plaintiff is the daughter of Late Rajinder Pal who is the husband of Late Smt. Swarn Beri. It is submitted that Passport no. J7555731 has been issued in favour of the plaintiff thereby revealing the name of her father as Sh. Rajinder Pal Beri and name of the mother as Smt. Swarn Beri who has also deposed duly sworn in affidavit on dated 31.12.2012 in a case wherein she stated that she has one son Sh. Rippan Beri and one daughter Smt. Nina Bhalla i.e. the plaintiff.
6.1 It is further submitted that late Smt. Swarn Beri used to suffer from many ailments but her son Sh. Rippan Beri never cared about her wellbeing. It is claimed that plaintiff had been taking care of her mother and getting medical treatment for her from various Hospitals in Delhi. It is further submitted that late Smt. Swarn Beri became seriously ill in the last days of her life and has expressed her wish to reside with the plaintiff and as such, the plaintiff took her ailing mother to Jalandhar where she got her best medical treatment from Dr. S. S. Dhingra and Dr. Ashutosh Gupta of Doaba Hospital Pvt. Ltd. Unfortunately, Swarn Beri died due to old age complications. Cremation and last rites were also performed by the plaintiff along with her cousins Sh. Arun Beri and Sh. Raman Beri and her husband Sh. Pawan Bhalla.
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 6 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte 6.2 It is stated that plaintiff had been visiting almost every month from Jalandhar to Delhi to know about the well-being of her old and ailing mother and where the defendant had also met her many times. It is further submitted that plaintiff has only one brother who has created no dispute over the legality of the said Will and as such no probate or letter of administration has been required to be obtained by the plaintiff. It is stated further that defendant has no right to raise question on the legality of the Will and she is just harassing the defendant with an ulterior motive to cause delay and to fetch handsome amount for handing over the vacant possession to the plaintiff.
6.3 It is next submitted that plaintiff had arranged two nurses, provided by Caring Hands, New Delhi to look after and care for her mother and she has been visiting almost once a month or sometimes even twice a month to look after and care for her mother. In April, 2017, plaintiff received a phone call regarding the sudden ailment of her mother and in the said circumstances, she had no other alternative but to ring to neighborer to arrange for her hospitalization till she reaches Delhi. It is admitted that the defendant has deposited some amount in the Hospital and plaintiff immediately paid all the expenses to defendant which she deposited in the Hospital. It is further submitted that doctor in the Hospital straightway told the plaintiff regarding her health condition and less chances of her survival and advised plaintiff to take her mother at home and provide her the best services in her old times. It is only at the advice of the doctor and at the wish of her mother that the plaintiff took her to Jalandhar in an Ambulance provided by Primus Hospital Super Speciality Hospital. The plaintiff appointed two full time Nurses namely Sunita Rani and Raj along with her at home.
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 7 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte 6.4 It is submitted that Smt. Swarn Beri had joint bank account with her son-in-law, Mr. Pawan Bhalla at Bank of Maharashtra and she also had a joint bank account with her daughter i.e. Plaintiff at Punjab National Bank, South Extension, New Delhi, the operation of the account of Bank of Maharashtra has been unoperational. It is submitted that even there is nomination of the plaintiff in the FDRs held by deceased Swarn Beri. 6.4 It is pleaded that Smt. Swarn Beri herself along with her grand-daughter Ms. Vani Bhalla went to the office of Sub-Registrar, Jalandhar and she also called Sh. Ashok Anand Advocate and in the presence of both, she executed Legal and valid Will and got the same registered before the office of Sub- Registrar, Jalandhar. Legal. It is submitted that valid notice dated 09.02.2018 was duly served at the correct address upon the defendant but it is the defendant who refused to accept the same.
ISSUES FRAMED
7. On the basis of the pleadings of the parties, the following issues are framed vide order dated 28.07.2022:-
1. Whether the plaintiff is entitled for recovery of damages/mesne profit of Rs. 75,000/- for the period of March 2018 along with pendente lite and future interest @ 18% p.a. till handing over the peaceful and vacant possession of the suit property to the plaintiff? OPP.
2. Whether the plaintiff is entitled to relief of Permanent Injunction against the defendant seeking restraint from parting with possession or creating any third party rights in respect of the suit property? OPP.
3. Relief.
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 8 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte
8. Subsequently, plaintiff moved an application under Order XIV Rule 5 CPC for amendment of issues framed. The same was allowed vide order dated 19.10.2022 and the following amended/modified issue no.1 was framed as under:
Issue no.1 Whether the plaintiff is entitled for recovery of damages/mesne profit of Rs. 75,000/- for the period of March 2018 and further damages at the like rate monthly along with along with interest pendente lite and future @ 18% p.a. till handing over the peaceful and vacant possession of the suit property to the plaintiff? OPP.
EVIDENCE OF PLAINTIFF
9. Plaintiff, in support of its case, has placed on record her affidavit in evidence vide Ex.PW1/X and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Mark PW-1/A Copy of passport showing the name of Late Father Sh. Rajinder Pal Beri
2. Ex. PW1/2(OSR) Death Certificate
3. Mark PW1/B Copy of Sale Deed indicating ownership
4. Mark PW1/C Copy of Will
5. Ex.PW1/5 Copy of site plan indicating the second floor portion of the property in possession of the defendant.
6. Mark PW-1/D Copy of Rent Deed (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 9 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte
7. Ex.PW-1/7 Legal Notice
8. Ex. PW-1/8 (colly) Tracking receipts 9.1 PW1 was cross examined on behalf of the defendant at length and discharged. Thereafter, no witness has been examined on behalf of the plaintiff and plaintiff evidence was closed vide order 01.05.2023. Thereafter, the matter was fixed for defendant evidence.
EVIDENCE OF DEFENDANT
10. The defendant examined herself as DW1 who tendered her evidence by way of affidavit Ex. DW1/A. She relied upon the following documents:
Exhibit Document
Ex. DW1/1(OSR) Aadhar card
Ex. D-1 Lease Agreement of the year 2004
Ex. D-2 Lease Agreement of the year 2006
Ex. D-3 Lease agreement of the year 2008
Ex. D-4 Lease Agreement of the year 2010
Ex. D-5 Lease Agreement of the year 2012
Ex. D-6 Lease Agreement of the year 2013
Ex. D-7 Lease Agreement of the year 2014
Ex. D-8 Lease Agreement of the year 2015
Ex. D-9 Lease Agreement of the year 2016
(Neetu Nagar)
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Delhi:04.05.2024 Page 10 of 38
CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte
Ex. P-2/D-10 Lease Agreement of the year 2017
Ex. D-11 Maintenance Agreement of the year 2004
Ex. D-12 Maintenance Agreement of the year 2006
Ex. D-13 Maintenance Agreement of the year 2010
Ex. D-14 Maintenance Agreement of the year 2012
Ex. D-15 Statement of account from HDFC Bank
Mark A Complaint dated 02.02.2018 to SHO, Kotla
Mubarakpur
Mark B Complaint dated 03.02.2018
Mark C Complaint dated 03.02.2018
11. DW1 was duly cross-examined on behalf of the plaintiff. Thereafter, no witness has been examined on behalf of defendant. Accordingly, DE was closed vide order dated 06.10.2023 and the matter was fixed for final arguments.
ARGUMENTS
12. I have heard the submission of learned Counsel for both the parties and carefully perused the material available on record as well as written submission filed on their behalf but contents thereof are not being reproduced for one sake of brevity and shall be dealt hereinafter.
OBSERVATIONS, FINDINGS AND REASONS
13. My issuewise findings are as under:
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 11 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte ISSUE NO. 1 Issue no.1 Whether the plaintiff is entitled for recovery of damages/mesne profit of Rs. 75,000/- for the period of March 2018 and further damages at the like rate monthly along with along with interest pendente lite and future @ 18% p.a. till handing over the peaceful and vacant possession of the suit property to the plaintiff? OPP.
14. The onus to prove this issue was on the plaintiff. The present suit is for ejectment and for consequential relief of possession, damages/mesne profits and permanent injunction filed by the Plaintiff as the daughter of Late Ms. Swaran Beri, who was admittedly the owner/landlord of the suit property. It is noted that during the pendency of the present suit, the Plaintiff had filed an Application under Order XII Rule 6 CPC in which it was prayed that a decree of possession in respect of the suit property be passed along with a decree of damages from the period from March 2018 and pendentelite and future damages @Rs. 75,000/- per month @18% p.a. till the peaceful and vacant possession of the suit property is handed over. Vide order dated 04.03.2020, the Learned Predecessor had partly decreed the suit in favour of the Plaintiff and against the Defendant with directions to the Defendant to hand over the possession of the suit property to the Plaintiff. The suit thereafter has continued for the remainder reliefs as duly contested. The learned Counsel for the Defendant has pointed out that the said order is under challenge before the Hon'ble High Court of Delhi, wherein Execution of the decree has been stayed vide order dated 24.11.2021 passed in RFA no. 392/2021 titled as "Lorraine Monte versus Nina Bhalla". Vide its order dated 24.11 .2021,the Hon'ble High Court has observed as follows:
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 12 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte "The learned Trial Court which is seized of the matter with regard to mesne profits and application for 15A filed by the respondent shall decide the same in accordance with law uninfluenced by the pendency of proceedings before this Court or any observation made in this order. Till the next date of hearing, the respondent shall not seek execution of the impugned order."
Further, the Hon'ble Court as an interim order directed that the defendant/tenant would keep on paying the admitted amount of rent to the tune of Rs.15,000/-per month w.e.f. February 2018 till November, 2021.
15. Perusal of the file further shows that the plaintiff had filed an application under Order XV-A CPC seeking directions to the defendant to deposit monthly rent @ Rs. 75,000/- and arrears to the court till pendency of the suit. The said application was dismissed vide Order dated 6.12.2021. It was submitted on behalf of learned counsel of the defendant that as per the directions dated 24.11.2021 passed in RFA No. 392 of 2021 titled 'Lorraine Monte Vs Nina Bhalla', the defendant has deposited an amount of Rs. 6,75,000/- towards the rent @ Rs. 15,000/- per month with effect from February 2018 to November 2021 with the learned Registrar General of Hon'ble Delhi High Court. In terms of the said order, the amount so tendered by the defendant and accepted by the plaintiff shall be "without prejudice" to their rights and contentions. Thereafter, "without prejudice", the defendant has been continuing to deposit the rent @ Rs. 15,000/-
every month in the Bank Account of the plaintiff. The said facts are not disputed between the parties to the present suit.
16. Admittedly, the defendant is a tenant in the suit property, under the landlordship of Smt. Swaran Beri. Clearly, no inter pleader (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 13 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte suit has been filed by the defendant against the Plaintiff and Sh. Rupan Beri (admittedly brother of the plaintiff). It is argued on behalf of the plaintiff that Ms. Swaran Beri had expired on 24.10.2017 and she had executed a registered Will dated 10.05.2013 in the favour of the Plaintiff, bequeathing properties, including the suit property herein. It was contended that the Defendant has been in occupation of the second floor of the property in question by virtue of rent deed dated 22.02.2017 Ex.PW1/D. It was urged that the issue regarding the rate of rent and mesne profit was left open for adjudication before the Hon'ble Trial Court. It was further contended that after the expiry of the lease deed, i.e. after 08.01.2018, the Defendant would be liable to pay penalty rent to the tune of Rs. 20,000/- for unauthorised occupation of the suit property as per clause 12 of the admitted rent deed in addition to the actual admitted rent of the suit property which was Rs. 15,000/- per month till the peaceful and vacant possession of the suit property has been handed over by the Defendant to the Plaintiff.
17. Per contra, it was urged on behalf of the defendant that there is no locus standi of the plaintiff to file the present suit in the first instance and challenged the alleged ownership of the plaintiff , interalia on the following grounds:
(i) That the last Rent Agreement dated 22.2.2017 was between Smt. Swaran Beri and the defendant. The defendant never paid rent to the plaintiff.
(ii) That the existence of jural relationship of landlord and tenant between the plaintiff and the defendant has been denied.
(iii) That the defendant has denied that the plaintiff is the daughter of Smt. Swaran Beri.
(iv) That the purported legal notice was issued on behalf of the (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 14 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte plaintiff on 09.02.2018, i.e., after the expiry of the period of the Rent agreement on 08.01.2018, is invalid.
(v) That the plaintiff has cooked up the story just to grab the suit property on the basis of the alleged Will dated 10.5.2013 which appears to be sham document, null, non-est and void ab initio.
(vi)That the defendant has denied all the documents filed by the plaintiff indicating that 'Nina Bhalla is the legal heir of Late Smt. Swaran Beri'.
18. It seems that the learned counsel on behalf of the defendant has raised the similar contentions which have already been raised and dealt with at the time of passing of order dated 04. 03. 2020 which is already under challenge before the Hon'ble High Court of Delhi. The controversy involved now is very limited as the said order has not been stayed and what has been stayed is the execution thereof. Let us now deal with the contentions of both the counsel one by one.
19. The main contention on behalf of the defendant is that the plaintiff is not the legal heir of late Smt. Swaran Beri. It was vehemently argued on behalf of the defendant that Smt. Swaran Beri only mentioned about having one natural born child, a son named Mr. Rippan Kumar Berry. In order to prove her relationship with Smt. Swaran Beri,the plaintiff has placed on record copy of passport showing the name of Late. Sh. Rajinder Pal Beri as her father and Smt. Swarn Beri as her mother. Admittedly, the name of husband of late Smt. Swaran Beri is Late Sh. Rajinder Pal Beri. Mere denial of passport is not suffice to prove that it is forged document. There is nothing on record to doubt the authenticity of the said passport. The plaintiff has then relied upon copy of registered Will EX.PW1/C wherein also the relationship of plaintiff with Smt. Swaran Beri is mentioned. The plaintiff herself admitted about her relationship with (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 15 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte her brother Mr. Rippan Kumar Berry. It is not the case of the defendant that the plaintiff is not the sister of Mr. Rippan Kumar Berry. Hence, it stands proved that late Smt. Swaran Beri had two legal heirs i.e. the plaintiff and her brother namely Mr. Rippan Kumar Berry.Merely for the reason that there are other legal heirs of a testator does not mean that the will executed by the testator is forged and fabricated. The defendant has even failed to examine Mr. Rippan Kumar Berry or any other legal heir known to her to prove if he/she has any objection to the said registered will.
20. It was further urged on behalf of the defendant that the defendant has been residing in the suit property since the year 2004 and during this entire period, the defendant never saw the plaintiff visit Smt. Swaran Beri.To my mind, simply for the said reason it can not be inferred that the said will is forged and fabricated and the lack of knowledge of the plaintiff being the daughter of late Smt. Smt. Swaran Beri cannot be a ground to deny the benefit of the registered will dated 10. 05. 2013 to the plaintiff.
21. It was next urged on behalf of the defendant that the defendant infact became the sole caregiver of Smt. Swaran Beri who was living in the property all by herself after the death of her husband on 11.11.2012. That in late September, 2017, Smt. Swaran Beri fell ill due to age related problems and the defendant had rushed her to the Moolchand Hospital where she was admitted to the Intensive Care Unit (ICU) and later, after release from Hospital, defendant had brought her home.It was contended that Payment for the treatment of Mrs. Swaran Berry was also made by the defendant as clear from Statement of Account from HDFC bank reflecting the payment to Moolchand Hospital on 30.4.2017 vide Ex. D15. Merely for the reason that the said payment has been made by the defendant does not (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 16 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte mean that the plaintiff was not the care giver or legal heir of late Smt. Swaran.
22. The next contention of learned counsel of the defendant is that the plaintiff came to the Primus Hospital and insisted on taking Smt. Swaran Beri with her to Jalandhar, Punjab who was got admitted therein by the defendant. Without bothering about her precarious health condition, the plaintiff, against the doctor's advice (LAMA), forcibly took away Smt. Swaran Beri with her. However, the said contention has not been proved on behalf of the defendant if the plaintiff forcefully took away the defendant against the advise of doctor. No such medical record has been proved on record.
23. Learned counsel on behalf of the defendant next highlighted that in the plaint ,the plaintiff has stated that the lease deed / Rent Deed (Ex. P-1) is a "forged document" and had specifically denied the signatures of Smt. Swaran Beri on the said document stating that the signatures "do not tally with the signatures of the plaintiff's mother". However, during her cross examination, the plaintiff has admitted that the lease deed Ex. P-1 was last executed by Smt. Swaran Beri. It was contended that contradictory stand of the plaintiff demonstrates that the plaintiff was not even aware about the signatures of Smt. Swaran Beri, who she claims was of her mother. Perusal of the file shows that the documents of lease were admitted by the plaintiff during the course of admission/denial of documents. To my mind, admission can be made by either party during any stage of the trial. Even if the plaintiff earlier raised doubt on the signature of Smt. Swaran Beri but having admitted the same, the same can not be detrimental to the care of the plaintiff as it has resulted in narrowing down the controversy between the parties and saving the time and expenses that would have been incurred in proving the said (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 17 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte documents. Hence, to my mind ,the said documents can be duly relied upon being in the nature of admitted documents.
24. It was argued vehemently on behalf of learned counsel of the defendant that the plaintiff has neither examined the attesting witnesses to the said purported Will nor summoned the competent Registrar to demonstrate the due and legal registration of the said purported Will. It was argued on behalf of the defendant that the present suit based upon such an un-probated Will is barred under Section 213 of Indian succession Act. It was further argued that there are suspicious circumstances surrounding the said purported Will as the said alleged Will dated 10.5.2013 has been executed in Jallandhar, Punjab, although Smt. Swaran Berry was an ordinary resident of Delhi. Arguing further, it was highlighted that the said Will does not specifically mention bequeath. It was urged that the defendant is entitled to challenge the derivative title of the plaintiff, who claims under the said purported Will of Smt. Swaran Beri. In this regard, reference was made to the judgment of the Hon'ble Supreme Court of India reported as 'Appollo Zipper India Limited Vs. W. Newman and Company Limited [(2018) 6 SCC 744], wherein it has been held as under:-
"42... Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the rent laws. However, this right (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 18 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord."
25. There is no dispute regarding the above mentioned legal position. But herein the plaintiff has stepped into the shoes of the original landlord who is her mother not only as her legal heir but as a legatee under her registered will. There is nothing on record to prove that the signature of Smt. Sawarna Beri on the said will are forged. Mere averment to that effect is not suffice. Pertinently, the present dispute is not regarding declaration qua the registered will between the legal heirs. Hence, to my mind there is no merit in the said contentions of learned counsel of the defendant as the said will is a duly registered document and it is a settled law that it is not the domain of the tenant to challenge the will of the landlord. Reference in this regard can be placed on case law titled as Bharat Bhushan Vij. v. Arti Teckchandani decided on Aug 8, 2008 wherein ,the Hon'ble Delhi High Court observed as follow:
"4. The concept of ownership in a landlord-tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 19 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner.
5. This Court in Ram Chander v. Ram Pyari, 109 (2004) DLT 388 : 2004 (72) DRJ 545 and Plashchemicals Company v. Ashit Chadha, 114 (2004) DLT 408 : 2004 (76) DRJ 654 have laid down the law that it was not for the tenant to challenge the Will of the landlord and any such challenge made by the tenant is a baseless and frivolous challenge...."
(Emphasis supplied) (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 20 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte
26. In the present case, the defendant has submitted that there is another legal heir namely Mr. Rippan Kumar Beri. But neither there are any pleadings nor any proof that the defendant ever made any effort to tender the rent to the other legal heirs much less an interpleader suit or made any efforts to make him as a witness in the present case. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership especially in light of the fact that the testament has not been proved to be a forged document by the opposite party. Admittedly, the petitioner was not paying any rent to anyone after the demise of the original landlord. There is no other person who has claimed ownership over the suit property and hence, these objections regarding the will have been raised by the defendant just for the sake of raising objection and prolong her occupation in the suit property.
27. It was next argued on behalf of the defendant that no probate has been obtained in the present case. It has transpired from the testimony of the plaintiff that the plaintiff has filed a petition / proceeding in respect of the purported Will in Jalandhar Court. Merely for the reason that a probate case is pending does not mean that the benefit of the same can be availed by the tenant/defendant. To my mind, in an eviction proceeding filed by a legatee under a will, it is not necessary to decide whether the will on the basis of which the suit is filed, is a suspicious one or that the parties must send the case back to the Probate Court for a decision whether the will was genuine or not in case the defendant fails to prove that the plaintiff is a stranger to the original landlord. In these circumstances, the stand of the defendant that the plaintiff should obtain probate first is not justified and correct. It is also well settled that in view of the Indian Succession Act, probate of a Will in Delhi is not mandatory and necessary. Reliance in (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 21 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte this regard can be placed on case law titled as Clarence Pais versus Union of India, (2001) 4 SCC 325 where it has been held that qua a will made by a Hindu, outside the presidency of Madras, Bombay and Bengal, a probate is not necessary.
28. The next prime question for adjudication in the present suit is whether the defendant in the present case is in unauthorized occupation or not. The plaintiff has duly proved on record serving legal notice under section 106 of Transfer of Property Act vide Ex.PW1/7 coupled with copy of tracking report Ex.PW1/8 by virtue of which the tenancy stands already terminated. Admittedly, the tenancy stands terminated as per Ex.PW1/D10 which is the last executed rent deed between the defendant and Smt. Swarna Beri. Upon determination of a lease by efflux of time, all rights, title and interest of the lessee under the lease, cease to exist, and the lessee is bound to put the lessor into possession of the property. If the lessee continues to remain in possession of the property, without the consent of the lessor, such possession becomes wrongful from the date of the termination of the lease.
29. Let us now see the consequences of retaining possession of premises subsequent to determination of lease by efflux of time. Section 108 (q) of the Transfer of Property Act provides that, upon determination of a lease, the lessee is obligated to put the lessor in possession of the property, even if there is no express covenant in the contract. When a lease comes to an end by efflux of time, or by notice of termination, or if there be a breach and the lessee's rights are forfeited, the lessee becomes a 'tenant at sufferance', and it becomes the duty of the lessee under Section 108 (q) of the Transfer of Property Act to restore possession to the lessor forthwith. Further Section 116 of the Transfer of Property Act states that, continuance of possession (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 22 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte of the property by the lessee after expiration of the term of the lease, coupled with acceptance of rent by the lessor or implied assent provided by the lessor towards the lessee continuing to remain in possession of the property, in the absence of an agreement to the contrary, brings into existence a statutory tenancy from month to month (in case of an immovable property) as contemplated under Section 116 of the Act. The said concept is more popularly recognized as 'Tenancy by Holding Over'. Notwithstanding the concept of 'Tenancy by Holding Over', in the event a lessee continues to retain possession of a property, without the consent (whether implied or explicit) from the lessor, such retention of possession is unlawful, and the concept is recognized as 'Tenancy at Sufferance'.
30. The Hon'ble Supreme Court of India in the matter of R.V. Bhupal Prasad vs State Of Andhra Pradesh & Ors. (1995) 5 SCC 69813, explained the concept of Tenant at Sufferance as follows:
"8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it wrongly after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus:
A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 23 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. 'The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English Law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at sufferance. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 24 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical."
31. The Hon'ble Supreme Court of India, in the matter of Raptakos Brett And Co. Ltd v. Ganesh Property decided on 8 th September 1998, said that, 'in view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.' (Emphasis Supplied)
32. Meaning thereby that the tenancy in the present case has terminated by efflux of time on 08.01.2018 and the present defendant is in wrongful possession of the suit property since then as admittedly no new lease deed has been executed between the defendant the plaintiff or any other legal heir of Smt. Swarna Beri and the plaintiff has not consented to any tenancy. Hence, it is now required to adjudicate the damages/mesne profits to which the plaintiff becomes entitled.
33. Before proceeding further, let us first discuss about the legal position regarding mesne profits. Section 2(12) of the CPC defines the mesne profits of property as meaning those profits which the person in wrongful possession of such property actually received or might with ordinary diligence would have received therefrom, together with interest on such profit. Thus, what is to be the rate of (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 25 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte mesne profits, is to be determined by evidence and is not a matter of contract.
34. The Hon'ble Delhi High Court in case titled as Smt. Santosh Arora & Ors vs Sh. M.L. Arora on 13 May, 2014[AIR 2015 (NOC) 58 (DEL.)] has observed with regard to mesne profits as follows :
"19. The true legal position may be summed up as under:-
A. The cause of action for a relief of recovery of mesne profits is separate and distinct from a cause of action for the relief of possession (See Gurudwara Baba Zorawar Singh and Baba Fateh Singh Ji Regd. Society Vs. Shri Piara Singh and Sons 141 (2001) DLT 228 (DB), Shri Prem Singh Verma Vs. Girdhari Lal Dhara MANU/DE/2207/2008 (DB), S. Santokh Singh Vs Gurbux Singh MANU/DE/0704/2001 (DB) & Syndicate Bank Vs. Raj Kumar Tanwar 154(2008) DLT 230(DB)).
B. Thus even if in a suit for recovery of possession of immovable property, the relief of mesne profits has not been claimed, a second suit lies for recovering mesne profits for the period subsequent to the filing of the suit for recovery of possession; of course for the recovery of mesne profits as far as within limitation. Reference in this regard can be made to Shiv Kumar Sharma Vs. Santosh Kumari (2007) 8 SCC 600. C. However a claim for mesne profits for the period prior to the institution of the suit for recovery of possession according to Channappa Girimalappa Jolad Vs. Bagalkot Bank AIR 1942 Bom 338 (DB) has to be made along with the suit for recovery of possession and cannot be made subsequent to the filing of the suit for recovery of possession but according to the (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 26 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte majority judgment of the Full Bench of the Punjab & Haryana High Court in Sadhu Singh Vs. Pritam Singh AIR 1976 P&H 38 the same can be made by a separate suit as well. D. Order 20 Rule 12 of the CPC requires the Court, in a suit for recovery of possession of immovable property and for rent or mesne profits, to, besides passing decree for possession, also pass a decree for mesne profits or direct an enquiry as to such mesne profits, for the period prior to the institution of the suit if claimed and if within limitation on the date of institution of the suit, and for the period, from the date of institution of the suit until delivery of possession.
E. The Supreme Court in R.S. Madanappa Vs. Chandramma AIR 1965 SC 1812 & Bhagwati Prasad Vs. Shri Chandramaul AIR 1966 SC 735 has held that where in a suit for recovery of possession a claim for recovery of mesne profits for the period till the date of institution of the suit is made, even if no claim / prayer for recovery of future mesne profits from the date of institution of the suit till the date of delivery of possession is made, Order 20 Rule 12 mandates the Court to direct such an enquiry into future mesne profits.
F. The reason for the aforesaid is not hard to fathom; the intent is to avoid multiplicity of suits for mesne profits for successive period after the date of the institution of the suit; each of such suits would have to be filed for recovery of mesne profits for a maximum period of three years, to avoid the defence of the claim for mesne profits having become barred by time. G. No claim for mesne profits can be allowed without first finding the defendant being in unauthorized occupation of the premises, as is evident from definition thereof in Section 2(12) (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 27 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte of CPC."
35. As far as future mesne profit are considered, the Hon'ble Supreme Court in Gopalakrishna Pillai Vs. Meenakshi Ayal AIR 1967 SC 155 has held as follows:-
" With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit.."
36. Reference can also be made to the observations of the Hon' ble Supreme Court in M/s. Marshall Sons & Co. (I) Ltd. vs. M/s. Sahi Oretans (P) Ltd. (1999) 2 SCC 325 wherein it was observed as follows:
"...because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications; even after obtaining a decree for possession of immovable property, its execution takes long time; in such a situation, for protecting the interest of the judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property".
37. At this stage ,it is also profitable to quote Order XX Rule 12 CPC which is relevant here and read as under:
"12. Decree for possession and mesne profit.- (1) Where a suit is for recovery of possession of (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 28 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte immovable property and for rents or mesne profits, the parties shall, in addition to adducing evidence in the Court of first instance, as to their right to possession, adduce evidence also in regard to the rents or mesne profits for the period prior to the institution of the suit (if any claimed), up to the date of commencement of trial and the said Court shall, irrespective of whether a decree for possession is passed or not, record findings as to the rent or mesne profits that may be payable to the plaintiff for the aforesaid period, in the event of a decree for possession being passed..
(2) The Court may pass a decree.-
(a) for possession of the property;
(b) for the rents or mesne profits which have accrued on the property during the period prior to the institution of the suit up to the date of commencement of trial;
(c) directing an inquiry into the rents or mesne profits from the date of commencement of trial until,
(i) the delivery of possession to the decree holder; or
(ii) the relinquishment of possession by the judgment debtor with notice to the decree holder through the Court or
(iii) the expiration of three years from the date of the decree whichever event first occurs.
(3) Where an inquiry is directed under clause (c) of sub-rule (2), a final decree in respect of the rents or mesne profits, shall be passed in accordance with the result of such inquiry.
(4) Where an appellate Court orders an inquiry as stated in clause (c) of sub rule (2), it may direct the Court of first (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 29 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte instance to make the inquiry and in every case, the Court of first instance may, of its own accord and shall, whenever moved to do so by the decree holder, inquire and pass a final decree.
(5) A decree may be partly preliminary and partly final and there may be more than one preliminary decree and more than one final decree."
38. Having regard to the definition of mesne profits and the legal position as discussed above in Section 2(12) of the Code of Civil Procedure,1908, it is apparent that mesne profits are something which a Plaintiff cannot evaluate and which it is solely for the court to determine on the evidence before it. In order to prove the same, the plaintiff examined herself as PW-1 and deposed on the lines of the plaint. PW1 relied upon various documents. A perusal of the lease deed relied upon by both the parties show that defendant is the tenant qua the suit property by virtue of a duly registered Lease Deed executed in her favour by Smt. Swaran Beri wife of Late Sh. Rajinder Pal Beri, on 21.02.2004 vide Ex.D1. The tenancy of the defendant in respect of the suit property was thereafter extended from time to time on mutually agreed terms by way of written agreements executed by Smt. Swaran Beri and the defendant as clear from Lease Agreements from the year 2004 to 2017 (Ex. D1 to Ex. D9).
39. It was highlighted by learned counsel of defendant that in terms of the Rent Deed dated 22.02.2017 (Ex. D10), the defendant deposited the rent @ Rs. 15,000/- P.M in the bank account of Smt. Swaran Beri till January, 2018. Thereafter, the defendant deposited the arrears of rent in the Delhi High Court Registry / paid to the plaintiff in terms of the Order dated 24.11.2021 passed in RFA No. 392 of 2021 titled 'Lorraine Monte V/s Nina Bhalla'. The rent has been paid up-to- date.
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 30 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte
40. Moving further, the Plaintiff has relied upon the copies of the advertisements published on the internet in order to show that the similarly situated properties in the area where the suit property is located are having the rent of Rs. 70,000/- to Rs. 80,000/-. Though the same was mentioned by the plaintiff in her evidence affidavit but the said documents were never tendered in evidence. Hence, no reliance can be placed on the said documents. The plaintiff in her cross- examination has deposed that she inquired from some property dealer as to the prevalent rate. She has then deposed that she had informed the property dealer from whom she verified that there are two rooms. She could not confirm if the there are two bed room and bathrooms attached thereto. During her further cross -examination, PW1 deposed that the property dealer did not mention any specific property number of similar kind fetching rent of Rs. 75-80,000/- to her. She then deposed that he had only made a reference to other properties in the area. She could not even tell the exact name of the property dealer she consulted. She has deposed next that there were 4-5 of them. Hence, it is amply clear from her cross-examination that the plaintiff failed to substantiate if she ever made any such consultation with any property dealer . Hence, the assertion of the plaintiff as regards the rate of rent @ Rs 75-80,000/- of similarly situated properties as mentioned in the plaint, was without any basis. The plaintiff has neither given any satisfactory answer with regard to the source of her information as to the rate of rent @ 75-80,000/- per month nor has the plaintiff produced any property dealer as a witness to substantiate her contention as regards the rate of rent @ Rs 75-80,000/- as claimed in the plaint. Hence, the plaintiff failed to prove if similar property under similar circumstances situated in the same locality is fetching market rent @ 75,000/- per month as claimed in the plaint.
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 31 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte
41. At this stage, it is requisite to reproduce the terms and conditions of the Lease Agreement dated 22.2.2017 (Exhibited as Ex. P-1/Ex.D-10) executed between Mrs. Swaran Beri and the defendant provided as under: -
"1.That the rental period in respect of the said demised premises shall be in force for a period of 11 (months) from 09/2/2017 to 08/01/2018 (hereinafter referred to as the Rent Period).
2.That the Second Party shall pay to the first party monthly rent Rs. 15,000.00/-(Rupees Fifteen Thousand) XXXX
12. That if the premises are not handed over to the first party as stipulated above, the second party will be liable to pay penalty rent Rs.20,000 /-per month for the unauthorised stay.
This will be without prejudice to any other legal/administrative action that may be contemplated
13.That the Second Party has deposited a sum of Rs. 30,000/- Rupees Thirty Thousand only) by cheque /cash, as an interest free refundable security deposit which shall be refunded by the First Party to the Second Party at the time of handing over back the actual physical, peaceful, vacant possession in good condition of the demised premises by the Second Party to the First Party and also after settling the account for the loss/damage items involved."
42. It was urged on behalf of the plaintiff that the mesne profits be awarded on the basis of clauses 12 of the lease agreement Ex. D10. On the contrary, it was argued vehemently by learned counsel on behalf of the defendant that in the Affidavit by way of Evidence, the (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 32 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte plaintiff cannot contradict or state facts which cannot be derived from the plaint. It was pointed out that there are no pleadings in the plaint that the defendant is liable to pay damages @ Rs. 20,000/- per month based on the lease deed Ex. D-1 and on the contrary, in the plaint, the plaintiff has categorically prayed for the grant of damages @ Rs. 75,000/- per month as damages as also in the application filed under Order XV A CPC. Moreover, the plaintiff in paragraph no. 5 of the plaint has categorically denied the execution of the said document i.e., Lease Agreement dated 22.2.2017 Ex.P-1, by Mrs. Swaran Berry. Thus, it was contended that the plaintiff having elected to contend in the plaint that the document Ex. P-1 is a forged document, at the stage of final arguments, cannot turn around and rely on the same 'forged' document when faced with the situation of being unable to bring evidence and prove the same. It was further argued that the plaintiff is barred by the well-recognized principles of 'Approbate and Reprobate' which means that when one utters statements contradictory to another, the same shall not be heard, would undoubtedly come into play. The plaintiff, after categorizing Ex. P-1 as being a 'forged document' cannot be now allowed to rely upon the same document to derive any benefit therefrom simply by making a statement in her Affidavit by way of Evidence, without having pleaded the same in the plaint.
43. Although the said averments on behalf of the defendant seem to be attractive but is devoid of any merit, as the plaintiff though have called the rent deeds as forged initially but have admitted the same during the stage of admission /denial of documents. Therefore, the said lease agreements are not only duly proved and exhibited by dint of admission of the plaintiff but otherwise also as the plaintiff has brought nothing to prove the same as forged as pleaded in the plaint.
(Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 33 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte Hence, reliance can be placed on the terms thereof. Meaning thereby that the defendant stands bound down by all the terms of the Lease Deed dated 22.02.2017 (Ex.P-1/Ex.D-10) inclusive of the Clause No. 12 to pay penalty rent of Rs. 20,000/ - per month for the unauthorised stay and not only the terms which are favourable to the defendant. Further, the penalty rent cannot be treated as over and above the rent of Rs. 15,000/- per month as averred by learned counsel of the plaintiff as the rent agreement is silent in this regard.
44. PW-1 deposed that legal notice dated 09.02.2018 Ex. PW1/7 was issued to the defendant and was duly served on the defendant. Moreover, copy of tracking report Ex.PW1/8 is also on record and therefore, the notice is deemed to have been served upon the defendant. As per the said rent agreement, the tenancy of the defendant commenced on 09.02.2017 and expired by efflux of time on 08.01.2018. However, even otherwise I am of the opinion that the tenancy of the defendant got expired by efflux of time after a period of 11 months on 08.01.2018 and there was no need to issue a notice under section 106 of the Transfer of Property Act for terminating the tenancy. In other words, the tenancy of the defendant expired by efflux of time on 08.01.2018 irrespective of the fact that the notice Ex. PW1/7 was served or not served.
45. Reference in this regard may be made to the judgment of the Hon'ble High Court of Delhi in case titled as Abdul Hamid Vs. Charanjit lal Mehra reported as 74 (1998) DLT 476 wherein it was held:
" .......There is no force in the arguments of the learned counsel for the defendants that no fresh notice of termination of lease was given by the plaintiff after expiry of lease period i.e. 02.11.1996 and, therefore, (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 34 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte the defendants will be holding over the tenancy on month to month basis and it would be necessary to have a notice under section 106 of the Transfer of Property Act and there will be no question for determination of tenancy by efflux of time under section 111 of the Transfer of Property Act. No plea of holding over has been made by the defendants. In Smt. Shanti Devi Vs. Amal Kumar Banerjee, AIR 1981 SC 1550, it was held that after expiration of the period of lease by efflux of time there was no requirement of issuing notice for determination of the lease......."
(Emphasis supplied )
46. Hence, since the defendant has not vacated the suit property despite termination of the tenancy by efflux of time, therefore, she is liable to pay damages/ mesne profits also for her wrongful possession in the suit property.
47. In Bakshi Sachdev (D) by L.Rs. v. Concord (I), 1993 RLR 563, it was held that the damages and mesne profits can be granted at a higher rate than the agreed rate of rent after the expiry of the tenancy and in that case after taking judicial notice of the fact of phenomenal rise in rents in Delhi and particularly in posh colonies like where the property in suit was located, higher rate of damages/mesne profits was awarded by the court. Reference may also be made to the judgment of the Hon'ble High Court of Delhi in P. S. Bedi v. Project & Equipment Corpn.of India Ltd. reported as AIR 1994 Delhi 255 in this respect.
48. Hence, keeping in mind the nature and extent of the suit property, and taking judicial notice of the factum of escalation of rents in Delhi as well as clause 12 of the rent deed Ex. D10, the ends of (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 35 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte justice would be met if the plaintiff is awarded pre suit and pendente lite damages/mesne profits at the rate of Rs.20,000/- per month from February 2018 till the date of decree and future damages/ mesne profits at the rate of Rs. 22,000/- per month from the date of decree till the date of handing over of the vacant possession of the suit property to the plaintiff alongwith interest @ 6% p.a. on it from the date of filing of the suit till the possession is recovered. The same is neither penal nor unconscionable. As a result of the above discussion, this issue stands decided in favour of the plaintiff and against the defendant.
ISSUE No. 2Whether the Plaintiff is entitled to relief of Permanent Injunction against the defendant seeking restrain from parting with possession or creating any third party rights in respect of the suit property? OPP
49. The onus to prove this issue was on the plaintiff. Vide order dated 15.04.2019, the learned predecessor has allowed the application filed by the plaintiff under Order 39 Rule 1 and 2 CPC and restrained the defendant from creating third party rights in respect of the tenanted premises and parting with the possession of the tenanted premises. In terms of the order dated 24.11.2021 passed by the Hon'ble Delhi High Court in RFA No. 392 of 2021 titled 'Lorraine Monte V/s Nina Bhalla', the plaintiff has been directed not to seek execution of the order dated 04.03.2020 (whereby the application under Order 12 Rule 6 CPC has been allowed). It was submitted on behalf of the defendant that the defendant is abiding by the said Orders dated 15.4.2019 and 24.11.2021. To my mind, the plaintiff is however entitled to the relief of permanent injunction restraining the defendant from parting with the possession of the suit property or (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 36 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte from creating any third party interest therein as the defendant being a tenant whose tenancy has been determined has no right to do so. Otherwise also clause 4 of the admitted lease deed dated 22.02.2017 Ex.P1/Ex.D10 executed between late Smt. Swarna Beri and the defendant clearly stipulated that the defendant cannot sublet the said demised premise in part or in full to anybody else. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
RELIEF
50. In view of the findings and reasons stated herein above, the plaintiff is awarded pre suit as well as pendente lite damages/mesne profits at the rate of Rs. 20,000/- per month from the month of February 2018 till the date of decree and future damages/ mesne profits at the rate of Rs. 22,000/- per month from the date of decree till the date of handing over of the vacant possession of the suit property to the plaintiff; or the relinquishment of possession by the defendant with notice to the plaintiff through the Court or the expiration of three years from the date of the decree whichever event first occurs. However, since the execution of the order dated 04.03.2020 has been stayed as far as ejectment is concerned,the possession of the defendant in the suit property is subject to the outcome of the order of Hon'ble High Court of Delhi. Hence,the execution of the present order pertaining to mesne profits since 24.11.2021 shall be subject to the passing of order dated 24.11.2021 in RFA no. 392/2021 titled as "Lorraine Monte versus Nina Bhalla". However, the defendant has to clear the entire pre -suit and pendente lite damages / mesne profit since February 2018 till 24.11.2021 within two months of the passing of the decree in the present suit. This court also deems it fit to award interest on the abovesaid amount @ (Neetu Nagar) JSCC-ASCJ-GJ/South East Delhi:04.05.2024 Page 37 of 38 CS SCJ 467/18 Nina Bhalla Vs. Lorraine Monte 6% p.a. from the date of filing of the suit till 23.11.2021. For the interest of the period from 24.11.2021 till the date of decree and future interest, same is not being passed at this stage being subject to the outcome of RFA No. 392/2021.
51. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant restraining the defendant from parting with the possession of the suit property to any third person or from creating any third party interest in the suit property.
52. In view of my findings and observations, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant in the aforesaid terms. Costs of the suit are also awarded in favour of the plaintiff and against the defendant.
53. Decree sheet be prepared accordingly. The decree qua pendentelite damages/ mesne profits shall not be prepared till balance court fee on the amount as on 24.11.2021 is paid. The amount already deposited on behalf of the defendant is to be deducted / adjusted from the amount of mesne profits. Thereafter, file be consigned to record room.
Digitally
signed by
Announced in the open NEETU
NEETU
NAGAR
court today i.e. 04.05.2024 NAGAR Date:
2024.05.04
(This judgment contains 38 pages 17:46:37
+0530
signed by the undersigned)
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Delhi:04.05.2024 Page 38 of 38