Delhi District Court
Smt. Neelam Rishi vs Shri Kapil Kathuria on 9 March, 2022
IN THE COURT OF Ms. SAUMYA CHAUHAN, SENIOR CIVIL JUDGECUM
RENT CONTROLLER (EAST): DELHI
CNR No.DLET030007982014
Civ Suit 8862/16
Smt. Neelam Rishi
W/o Sh.Vijay Kumar Rishi
R/o A23, Second Floor,
Gali No.2, East Krishna Nagar,
Delhi110051 .......Plaintiff
Versus
Shri Kapil Kathuria
S/o Sh. Sohan Lal Kathuria,
R/o B13/2 (Third Floor),
Krishna Nagar,
Delhi110051 ...... Defendant
Date of filing : 20.09.2014
Date of reserving for judgment : 09.12.2021
Date of pronouncement of Judgment : 09.03.2022
EXPARTE JUDGMENT
1.Vide this judgment, the court shall decide the present suit for recovery of possession and for use and occupation charges.
2. The briefly stated facts of the present suit as per the plaint are that the plaintiff is the owner of property no.B13/2, Third Floor, situated in the abadi of Krishna Nagar, Delhi110051. It has been averred that the defendant had taken on rent two bed rooms (one room having wooden partition), two bathrooms, kitchen fitted with three geezers, six fans, seven electricity tubes, one jhumar, five holder, seven curtains rods at third floor with common terrace and common scooter parking space at ground floor forming part of CS No. 8862/16 Page 1 of 6 property no.B13/2, Krishna Nagar, Delhi110051 (hereinafter referred as the suit property) at monthly rent of Rs.12,000/ exclusive of electricity and water charges w.e.f. 15.07.2013 for a period of one year ending on 14.07.2014. A Rent Agreement dated 09.07.2013 was executed by the parties and was duly registered in the office of Sub RegistrarVIII, New Delhi. The defendant had taken possession of the suit property on 13.07.2013.
3. It has been further averred that in terms of clause no.9 of the Rent Agreement, it was incumbent on the defendant to hand over the vacant physical possession of the suit property to the plaintiff with all its fittings and fixtures on 14.07.2014. However, the defendant failed to do so, despite plaintiff's letter dt.14.05.2014, calling upon the defendant to vacate the suit premises as the same was needed by her for her family. It has been further averred that refundable security of Rs.24,000/ paid by the defendant to the plaintiff is to be refunded to the defendant upon handing over physical vacant possession of the suit property to the plaintiff in terms of clause 18 of the Rent Agreement. However, since the defendant has failed to hand over the vacant and peaceful possession of the suit property to the plaintiff, he is liable to pay penalty @ Rs.1,000/ per day after 14.07.2014. Plaintiff also served legal notice dated 18.07.2014 calling upon the defendant to handover vacant physical possession of the suit property to her within 7 days of the receipt of notice and to take back interest free refundable security of Rs.24,000/. Despite that, the defendant has neither vacated the suit property nor paid the use and occupation charges. Hence, the present suit.
4. Summons of the suit was issued to the defendant vide order dated 20.09.2014 and defendant were duly served. Written statement was filed on behalf of the defendant. However, the defence of the defendant was struck off vide order dated 08.10.2016.
5. On completion of pleadings, following issues were framed vide order dated 26.11.2016:
1. Whether the plaintiff is entitled to recovery of possession of the suit property at third floor no.B13/2, Krishna Nagar, Delhi110051 alongwith CS No. 8862/16 Page 2 of 6 parking space and accessory thereto to the enjoyment of suit property being in landlord and tenant relationship? OPP
2. Whether the plaintiff is entitled to recovery of Rs.78,000/ w.e.f. 15.07.2014 to 30.09.2014 for mense profits on the suit property referred under issue no.1 above?OPP
3. Whether the plaintiff is entitled to pendentelite and future mense profits @ Rs.1000/ per day as per clause 22 of the rent agreement dated 07.07.2013?OPP
4. Relief.
6. Due to nonappearance of the defendant, the suit was proceeded exparte against the defendant vide order dated 27.03.2017. However, an application was moved by defendant under Order IX Rule 7 CPC which was allowed vide order dated 06.07.2017 and the exparte order was set aside by the court.
7. To lead evidence, plaintiff entered the witness box as PW1 and tendered her evidence by way of affidavit which is Ex. PW1/A. She corroborated the averments made in the plaint and relied on the following documents -
1. The original Rent agreement is Ex.PW1/1 (OSR).
2. Copy of letter dated 14.05.2014 is Ex.PW1/2 (OSR).
3. Copy of legal notice is Ex.PW1/3 (OSR).
4. Reply of legal notice is Ex.PW1/4 (OSR).
5. Information dated 05.08.2014 is Ex.PW1/5.
6. The postal receipts and the AD card is Ex.PW1/6 (colly.).
8. Mr. Vijay Kumar Rishi, husband of the plaintiff is PW2. He corroborated the testimony of PW1 and relied on the documents already Ex.PW1/1 to Ex.PW1/6.
CS No. 8862/16 Page 3 of 69. Despite given ample opportunities, the defendant failed to crossexamine both PW1 and PW2, and his opportunity to cross examine the PWs was closed by the order of the court dated 16.03.2018. Thereafter an application under Section 151 CPC was also moved on behalf of the defendant to recall the order dated 16.03.2018, which was dismissed. The suit was once again proceeded exparte against the defendant vide order dated 06.03.2021.
10. No other witness was examined on behalf of plaintiff and the matter was listed for exparte final arguments.
11. I have heard the exparte final submissions made by Ld. Counsel for the plaintiff and perused the record carefully. No oral submissions were made on behalf of the defendant nor were any written submissions filed. The issue wise findings of the court are:
12. Issue no.1 to 3 "Whether the plaintiff is entitled to recovery of possession of the suit property at third floor no.B13/2, Krishna Nagar, Delhi110051 alongwith parking space and accessory thereto to the enjoyment of suit property being in landlord and tenant relationship? OPP "Whether the plaintiff is entitled to recovery of Rs.78,000/ w.e.f. 15.07.2014 to 30.09.2014 for mense profits on the suit property referred under issue no.1 above?OPP"
"Whether the plaintiff is entitled to pendentelite and future mense profits @ Rs.1000/ per day as per clause 22 of the rent agreement dated 07.07.2013? OPP"
13. All these issues are taken up together being interconnected and interrelated. The onus of proving all these issues was on the plaintiff.
CS No. 8862/16 Page 4 of 614. As the defendant has already been proceeded exparte, the testimony of PW1 and PW2 have remained unchallenged and unconverted. Even the defendant has admitted in his written statement his tenancy qua the suit property. The plaintiff has proved that the premises was rented out to the defendant vide the Rent Agreement Ex. PW1/1. The legal notice and letter sent by the plaintiff to the defendant are Ex.PW1/3 and Ex.PW1/2 respectively. There is no reason to disbelieve the unrebutted testimony of PW1 and PW2 or to doubt the authenticity of the documents proved on record. The suit is within the jurisdiction of this court and has been filed within the period of limitation.
15. Hence, the court is of the considered opinion that the plaintiff has successfully proved her case and is entitled to decree. Issue no.1 to 3 are accordingly decided in favour of the plaintiff. The plaintiff is entitled to the relief of possession, arrears of rent as well as mense profit. However, as far as the rate at which mense profits has been claimed by the plaintiff i.e. Rs.1,000/ per day is excessive. The court is of the considered opinion that the ends of justice shall be met by awarding mense profit at Rs.15,000/ per month w.e.f.15.07.2014 to 30.09.2014 and further till handing over of peaceful and vacant possession of the suit property by the defendant to the plaintiff.
16. Issue no.4 "Relief"
17. In view of the above findings of this court, the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is entitled to the following reliefs:
1. A decree for recovery of possession of the suit property i.e. two bed rooms (one room having wooden partition), two bathrooms, kitchen fitted with three geezers, six fans, seven electricity tubes, one jhumar, five holder, seven curtains rods at Third Floor with common terrace and common scooter parking space at Ground Floor forming part of property No.B13/2, Krishna Nagar, Delhi110051 in favour of the plaintiff and against the CS No. 8862/16 Page 5 of 6 defendant.
2. A decree for recovery of use and occupation charges at the Rs.15,000/ per month w.e.f.15.07.2014 to 30.09.2014 and further till handing over of peaceful and vacant possession of the suit property by the defendant to the plaintiff.
3. Costs of the suit is also awarded in favour of the plaintiff.
18. Decree sheet be prepared accordingly.
19. File be consigned to the record room after due compliance.
Announced in the Court
today the 09th March, 2022 (SAUMYA CHAUHAN)
SCJcumRC, East
CS No. 8862/16 Page 6 of 6