Delhi District Court
Sh. Vinit Kumar Singhal vs Sh. Abdul Hannan on 20 October, 2018
IN THE COURT OF SH. ANKIT SINGLA, ACJ/ARC/CCJ
NORTH EAST: KARKARDOOMA COURTS: DELHI
Civil Suit No. 152/16
CNR No. DLNE03-000418-2016
In the matter of :
Sh. Vinit Kumar Singhal
S/o Sh. Sulekh Chand Singhal
R/o G289, Preet Vihar, Delhi. .......PLAINTIFF
Versus
Sh. Abdul Hannan
S/o Sh. Sannawar
R/o A86, New Seelampur
Delhi. ....DEFENDANT
Date of Institution : 19.03.2016
Date of Judgment reserved on : 11.10.2018
Date of Pronouncement : 20.10.2018
Decision : Decreed
SUIT FOR POSSESSION, ARREAR OF RENT AND MESNE PROFIT
JUDGEMENT
1. Vide this judgment, I shall dispose off the suit filed by the plaintiff for relief of possession and mesnne profit.
2. Briefly stated the facts as averred in the plaint are as follows:
a) Plaintiff is the owner of the property bearing No. A86, New Seelampur, Delhi consisting one hall, one latrine bathroom on the ground floor admeasuring 40 sq. yards(hereinafter referred as suit property).
CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 1 of 12b) The tenancy was created between the plaintiff and the defendant in regard to suit property on a monthly rent of Rs. 12,000/ per month excluding electricity and water charges w.e.f 20.04.2015 for six months. In this regard an rent agreement was executed between the defendant and plaintiff on 24.04.2015.
c) The defendant has failed to pay monthly rent of Rs. 12,000/ since August 2015. The defendant paid monthly rent uptill July 2015 only.
d) On 21.10.2015, father of the plaintiff visited the premises and stated to the defendant to vacate the suit property as per terms and conditions mentioned in the rent agreement. The defendant was further requested to pay the outstanding arrears, but instead of paying the same, the defendant became aggressive and started using abusive language and also threatened the plaintiff to face dire consequences and stated to the plaintiff to forget the suit property.
e) Thereafter, the plaintiff served a legal notice to the defendant dated 31.10.2015 whereby the tenancy of the defendant was terminated from 21.10.2015 and the defendant was directed to vacate the premises within 15 days from receiving of that legal notice. But, the defendant failed to comply the above noted legal notice and instead of vacating the premises the defendant filed a civil suit against the plaintiff and his father for permanent injunction and the same was assigned to Ms. Suchi Laler, JSCC/ASCJ, NorthEast, Delhi bearing suit No. 220/2015 and after the notice the plaintiff appeared and made the statement before the Court not to evict the defendant without due process of law and without prejudice and admitting the contents of the suit and the same was disposed off on 20.11.2015.
CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 2 of 122. Summons for settlement of issues were sent to the defendant. The defendant appeared in pursuance of summons and filed written statement in his defence. The defendant took several objections to contest the claim of the plaintiff. It is stated that the suit is barred by Section 50 of Delhi Rent Control Act. It is further averred that the suit is based on false and concocted facts and the plaintiff has concealed the material facts from the Court.
3. On merits, it is denied that the plaintiff is the owner of the suit property. It is admitted by the defendant that he is a tenant of the plaintiff in respect of the suit property, but it is claimed that the rent of property is Rs. 2,500/ per month and not Rs. 12,000/ per month as alleged in the plaint. It is stated by the defendant that he had sent rent by money order @ Rs. 2,500/ per month on 04.03.2016 for three months, which has been duly accepted by the plaintiff and the same shows that rate of rent is of Rs. 2,500/ per month.
4. Replication was filed on behalf of the plaintiff to the written statement of the defendant denying the contents of the written statement and reiterating the avermnents made in the plaint.
5. On completion of pleadings, the following issues were framed by the Ld. Predecessor:
1. Whether plaintiff is entitled to a decree of possession as prayed for ? OPP
2. Whether plaintiff is entitled to a decree of arrears of rent and mesne profits, as prayed for ? OPP
3. Whether suit is barred U/s 50 of the Delhi Rent Control Act ?
OPD CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 3 of 12
4. Whether plaintiff has concealed the material facts from the Court, which if revealed, would disentitle from getting the reliefs sought by him ? OPD
5. Whether suit is barred by Section 35A CPC ? OPD
6. Relief.
6. Thereafter, matter was fixed for PE. In order to support his case, plaintiff examined three witnesses.
7. PW1 is plaintiff Sh. Vinit Kumar Singhal. This witness tendered his evidence by way of affidavit. This witness was cross examined. This witness in his affidavit reiterated the averments made in the plaint and in the replication. This witness relied upon following documents: Site plan of the suit property Ex. PW1/A Copy of rent of rent Ex. PW1/B (OSR) agreement dated 20.04.2015 Legal notice dated 31.10.2015 Ex. PW1/C Postal receipt Ex. PW1/D Receipts of rent Ex. PW1/E (OSR) (Colly)
8. PW2 is Vishal Chourawat. This witness filed his evidence by way of affidavit Ex.PW2/1. This witness was cross examined. During cross examination of this witness, ld. Counsel for the defendant failed to extract any material contradictions affecting the case of plaintiff. This witness relied upon the document Ex.PW1/B (rent agreement).
9. PW3 is Sh. Sulekh Chand. This witness filed his evidence by way CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 4 of 12 of affidavit Ex.PW3/1. This witness was cross examined. During cross examination of this witness also, ld. Counsel for the defendant failed to extract any material contradictions affecting the case of plaintiff. This witness also relied upon the document Ex.PW1/B (rent agreement).
10. Thereafter, PE was closed and matter was fixed for DE.
11. Defendant examined two witnesses to prove his case. DW1 is defendant Abdul Hannan. This witness tendered his evidence by way of affidavit Ex. DW1/1. In crossexamination this witness admitted that he is using the tenanted premises for purpose of business of junkyard. This witness relied upon the following documents:
Photocopies of three postal Mark A (colly) receipts dated 04.03.2016 Photocopies of two postal Mark B (colly) receipts dated 30.05.2016 Three original money order Ex.DW1/A (colly) acknowledgement receipts dated 04.03.2016
12. DW 2 Sh. Sikandar Hasan tendered his evidence by way of affidavit Ex. DW2/A. This witness was crossexamined at length. In his affidavit, this witness has stated that no rent agreement was signed between plaintiff and defendant. This witness stated that defendant had told him that plaintiff has taken his signatures on some papers on the plea that the same would be used for police verification.
13. Thereafter, DE was closed and matter was fixed for final arguments. Arguments were addressed for counsel for both the parties. I have considered CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 5 of 12 the contentions of both the counsels and gone through the record.
14. Before other issues, the issue no.3 is taken first as same is legal issue and the outcome of this issue would decide the jurisdiction of this court. Even otherwise the main defence of defendant is that rate of rent is less than Rs.3500/ which bring the suit premises within the purview of DRC Act.
Issue no. 3) and 4)
3)Whether suit is barred U/s 50 of the Delhi Rent Control Act ? OPD
4)Whether plaintiff has concealed the material facts from the Court, which if revealed, would disentitle from getting the reliefs sought by him ? OPD
15. Along with issue no.3, issue no.4 is also decided as same involves common question of law and facts. As per section 3 (c) of DRC Act, provision of DRC Act are not applicable to the premises, whose monthly rent exceed Rs.3500/. As per Section 50 of DRC Act, a civil court cannot entertain any suit with regard to eviction of a tenant from a property over which provision of DRC Act are applicable. Thus, the cumulative reading of both the aforesaid provisions shows that if the rent of a premises is less than Rs.3500/, then the suit before civil court is barred by Section 50, but if, the rent is exceeding Rs.3500/, then the provision of DRC Act would not be applicable and consequently suit for eviction before civil court would be maintainable.
16. In the present case, the defence of defendant is that rate of rent is less than Rs.3500/ i.e Rs.2500/ only, therefore, provision of DRC Act would be applicable and consequently suit is barred by Section 50 of the DRC Act, CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 6 of 12 whereas, the case of plaintiff is that rate of rent is Rs.12000/ and therefore, provision of DRC Act are not applicable and suit for eviction is maintainable.
17. Since, the question regarding the maintainability of suit for eviction is based upon the rate of rent, in order to decide this issue, it become essential to decide the rate of rent of the suit premises. The onus to prove that the rate of rent is Rs. 12,000/ per month was upon the plaintiff, whereas the onus to prove rate of rent as Rs. 2,500/ is upon the defendant.
18. In order to discharge his onus, the plaintiff has examined three witnesses. He has also placed on record one rent agreement date 24.04.2015 which is Ex. PW1/B. The perusal of the rent agreement shows that agreed rate of rent between the parties was Rs. 12,000/. The plaintiff deposed that this agreement was duly signed by the defendant in his presence and he also signed the same as an attesting witness. This witness identified his signature on Ex. PW1/B at point B. This witness further examined PW2, who is another attesting witness. This witness also corroborated the testimony of PW1 and PW3. No material contradictions could be brought by defence counsel from the testimonies of these witnesses. No explanation could be given by ld. defence counsel as to why their testimonies be disbelieved. The testimonies of these witnesses have been further corroborated by admission of defendant made in the Written Statement. In the written statement it is stated by the defendant that he is an illiterate person and at the time of commencement of tenancy the plaintiff got his signature on blank papers and now he got the same typed. The aforesaid averment made in the written statement clearly shows that the signature of the defendant on the rent agreement Ex.PW1/A has not been denied. Further, in affidavit filed by DW2, he has further stated that the rent agreement bear signature of defendant, but same were obtained under the CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 7 of 12 pretext of police verification.
19. Further, during crossexamination of plaintiff also, it was suggested to him that he got signature of the defendant on blank papers on the pretext of police verification. The aforesaid suggestion, admission and deposition made by defendant shows that signature on rent agreement has not been denied. The only defence taken by defendant to get rent agreement rejected is that his signature were obtained by misrepresenting that same would be used for police verification, however, defendant miserably failed to prove that his signature on rent agreement were obtained under the pretext of police verification. He also fail to aver in his affidavit that his signature on rent agreement were obtained by way of fraud or misrepresentation on the pretext of police verification. Further, during cross examination, defendant was shown one document which is police verification form and which is now Ex. DW1/PX1. This document was admitted by defendant to be bearing his signature and photograph. It is not the case of defendant that he signed police verification form more than once. The admission by defendant that police verification form has been signed by him contradict the defence taken by him that his signature on rent agreement were obtained under the pretext of police verification. The fact that defendant had separately signed the police verification form goes on to show that defendant has taken false defence that his signature were obtained on the false pretext of police verification. Apart from vague averment that the plaintiff took his signature on some blank papers, no specific averment has been made that rent agreement has been prepared by using these blank papers. These vague averments in the WS cannot be basis of any defence to disbelieve the unblemished case of plaintiff. Thus, the defence of defendant that his signature on rent agreement Ex. PW1/A were obtained by way of fraud is rejected. The unblemished testimony of the plaintiff CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 8 of 12 corroborated by Ex.PW1/A and testimony of PW2 and PW3 read with admission made in the Written Statement prove beyond any reasonable doubt that the rent agreement Ex. PW1/A was executed between the plaintiff and the defendant. As per the rent agreement, agreed rent was Rs. 12,000/. No oral evidence can be admitted to contradict the rent agreement in view of Section 92 of Indian Evidence Act. Accordingly, it is held that agreed rate of rent between the parties was of Rs. 12,000/. Since the rate of rent is more than Rs.3,500/, the provision of DRC Act are not applicable. Hence, the suit is not barred by Section 50 of the DRC Act. Accordingly, both these issues are decided in favour of the plaintiff.
Issue No. 1) Whether plaintiff is entitled to a decree of possession as prayed for ? OPP
20. In order to be entitle for decree of possession, the plaintiff is required to prove the following ingredients:
(i) that there exists landlord and tenant relationship between the plaintiff and the defendant.
(ii) that provisions of Section 50 of Delhi Rent Control Act is not applicable.
(iii) that legal notice of termination of tenancy was duly served.
Ingredient No. (i) Whether there exists landlord and tenant relationship between the plaintiff and the defendant.
21. The defendant has not denied in his WS that the plaintiff is his landlord CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 9 of 12 in respect of the suit property. A fact admitted need not to be proved by way of formal evidence. Since, the defendant has not denied the plaintiff as his landlord in respect of suit property, it is held that plaintiff is able to prove existence of relationship of landlord and tenant between him and the defendant.
Ingredient No. (ii) Whether the suit is barred by Section of 50 of Delhi Rent Control Act.
22. It is already been decided while deciding issue No. 3 that suit is not barred by Section 50 of the DRC Act. Accordingly, it is also held that the plaintiff is able to prove this ingredients also.
Ingredient No. (iii) Whether legal notice of termination has been duly served.
23. The plaintiff had stated that he had sent legal notice of termination of tenancy to the defendant. The plaintiff proved the legal notice and the postal receipt. The defendant in his crossexamination categorically admitted that he had received legal notice Ex.PW1/B on 31.10.2015. Since, in his cross examination, the defendant has admitted service of legal notice, it is held that tenancy was duly terminated by sending legal notice on 31.10.2015.
24. Thus, in view of aforesaid, it is held that plaintiff is able to prove all the ingredients required for decree of possession. Accordingly, this issue is decided in favour of plaintiff.
Issue no.2 CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 10 of 12 Whether plaintiff is entitled for arrears of rent or mesne profit as prayed for?
25. As per plaintiff, the defendant is in arrears of rent since August, 2015, whereas as per defendant, he had sent money order @ Rs.2500/ per month for three month for period 01.01.2016 to 31.03.2016 which was duly accepted and the said demand draft shows that rate of rent was Rs.2500/. Merely, because plaintiff accepted the demand draft of Rs.2500/ is by itself not sufficient to show that rate of rent was Rs.2500/ because the demand drafts were sent after service of legal notice of termination of tenancy. The onus to prove that rent was regularly paid was upon the defendant. The defendant has failed to place on record any rent receipt, demand draft or other account statement showing payment of rent after August, 2015 till the expiry of 15 days from service of legal notice. Accordingly, it is held that defendant is in arrears of rent from August, 2015 till the expiry of 15 days from service of legal notice. Accordingly, plaintiff is held to be entitled for arrears of rent for the aforesaid period.
26. Surprisingly, the plaintiff has further claimed for mesne profit @ Rs.5000/ per month. Since, it has already been held that agreed rate of rent was Rs.12000/, the plaintiff would have got the said rent if defendant would not have overstayed. Although, plaintiff would have been entitled for such rent, but since in the prayer clause, plaintiff has requested for mesne profit @ Rs.5000/ only, plaintiff is granted mesne profit @ Rs.5000/ only from the expiry of 15 days from date of service of legal notice for termination of tenancy. With aforesaid observation, this issue is also decided in favour of plaintiff. Defendant would be entitle to adjust rent sent by him through demand draft or deposited in the court.
CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 11 of 12Issue no.5)
5) Whether suit is barred by Section 35A CPC ? OPD
27. Section 35A of CPC states that if in any suit or proceedings, any party object to the claim of defence on the ground that claim or defence is false and vexatious, the court can compensate the said party, if the claim or defence put by the other party is found false or vexatious. The bare language of this provision shows that this provision does not bar filing of any civil suit. The perusal of WS shows that even in WS, it was not stated that suit is barred by section 35A of CPC. The only averment made in the WS is that since suit is false and vexatious, the defendant is liable to be compensated. It appears this issue has been wrongly framed by the ld. Predecessor. Accordingly, this issue is deleted.
28. In view of the aforesaid observations, the suit of the plaintiff is decreed for relief of possession, arrears of rent and damages. Decree sheet be prepared accordingly.
29. File be consigned to the record room.
Announced in the open court
on 20th October, 2018
(ANKIT SINGLA)
ACJ/ARC/CCJ
Digitally signed by
ANKIT SINGLA NORTH EAST DISTRICT
ANKIT Location: North- KARKARDOOMA COURTS, DELHI
East,Karkardooma,
SINGLA Delhi
Date: 2018.10.22
14:58:57 +0530
CS No. 152/16 Vinit Singhal vs Abdul Hannan Page 12 of 12