Delhi District Court
Kanwal Sethi vs . Ranjana Aggarwal on 8 June, 2023
IN THE COURT OF MS. CHITRANSHI ARORA , CIVIL JUDGE-02,1
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI.
CS SCJ 64/17
Kanwal Sethi Vs. Ranjana Aggarwal
In the matter of:-
Mrs. Kanwal Sethi,
W/o Late Sh. S. S. Sethi,
R/o G-13, Jangpura Extension,
New Delhi-110014 ..........Plaintiff
Versus
Mrs. Ranjana Aggarwal,
W/o Sh. Anil Aggarwal,
Presently at G-13, Ground Floor,
Right Side Read Portion,
Jangpura Extension, New Delhi-110014 ........Defendant
SUIT FOR POSSESSION, ARREARS OF RENT AND DAMAGES
Date of institution of the suit : 20.01.2017
Judgment reserved on : 24.05.2023
Date of judgment : 08.06.2023
JUDGMENT
1. Vide this judgment, I shall decide the present suit for possession qua the rear portion right side of the property bearing No. G-13, ground floor, Jangpura Extension, New Delhi-110014, comprising 1 room, bathroom and kitchen (hereinafter referred to as the 'suit property'), arrears of rent and damages filed by the plaintiff against the defendant.
1 The undersigned is currently posted as Civil Judge-03, South West, Dwarka, New Delhi as per the order no. 25/DHC/Gaz/G-7/VI.E.2(a)/2023 dated 24.05.2023 of the Hon'ble High Court of Delhi. By virtue of the same order, it has been ordered that the judicial officer shall pronounce judgments in the matters reserved for the same. This judgment is passed in compliance of the above said direction of the Hon'ble High Court of Delhi.
CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 1of 32 BRIEF FACTS AS PER THE PLAINT:-
2. Plaintiff is the absolute owner of the property bearing No. G-13, entire ground floor, first floor & terrace, Jangpura Extension, New Delhi-110014.
3. Defendant entered into a rent agreement in November 2000 with Late Sh. Mohan Singh Sethi, the father-in-law of plaintiff, qua the suit property, comprising of one room, bathroom & kitchen. The rent was fixed at Rs.5,000/- per month. The parties entered into another rent agreement in January 2001 for the same period commencing from 11.11.2000 to 10.09.2001, where the earlier rent agreement was segregated under two different heads i.e. rent agreement and agreement for fixture/ fittings.
4. Thereafter, though, the defendant continued to live in the suit property, she avoided entering into a rent agreement on one pretext or the other. Late Sh. Mohan Singh Sethi did not object and allowed her to reside in the said premises on a month to month tenancy as she was paying the rent, each month on time. Monthly rent was increased from time to time.
5. After demise of Sh. Mohan Singh Sethi on 30.03.2012, the defendant started paying the monthly rent to Mrs. Harjinder Kaur, wife of Late Sh. Mohan Singh Sethi. After the demise of Smt. Harjinder Kaur on 15.02.2014, the defendant was asked by the legal heirs of Late Sh. Mohan Singh Sethi & Late Smt. Harjinder Kaur to vacate the suit property.
6. However, at request of the defendant, the legal heirs namely Sh.
Pritam Pal Singh Sethi (Son), Mrs. Jasbir Kaur Chadha (Daughter), Mr. Jaideep Singh Sethi and Mr. Simran Singh Sethi (sons of pre-deceased son), allowed the defendant to continue on a month to month tenancy and was asked to pay monthly rent to Mrs. Jasbir Kaur Chadha, the daughter of late CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 2of 32 Sh. Mohan Singh Sethi and late Smt. Harjinder Kaur. The monthly rent at that time stood at Rs.8,000/- and Rs.1,000/- towards water & electricity charges, which the defendant continued to pay uptil May 2015.
7. The legal heirs of late Sh. Mohan Singh Sethi & late Smt. Harjinder Kaur executed a Relinquishment Deed in respect of their right, claim & title in the entire property bearing No. G-13, in favor of plaintiff, on 26.11.2015. The defendant was informed about the change in ownership by Mrs. Jasbir Kaur Chadha in January 2016 and was asked to pay the monthly rent to plaintiff, the sole owner of the entire ground floor including the suit property. Defendant acknowledged and confirmed that she would pay the monthly rent to plaintiff thereon, including the past rent due since June 2015.
8. However, when the plaintiff approached the defendant in first week of February, the defendant sought time till 01.04.2016 to make the payment of the rent and arrears on account of financial crunch. Again, the defendant approached plaintiff in April 2016 and cited unavailability of funds. The defendant further confirmed that she shall vacate the suit property in July 2016 after paying all the due monthly rents and as such there was no requirement of entering into a Rent Agreement under such circumstances.
9. Defendant did not vacate the suit property in July 2016. She thereafter confirmed that she shall vacate the suit property on 05.11.2016. However, she failed to do so and blatantly refused to sign the rent agreement. She advised the plaintiff not to visit again for rent.
10. Plaintiff sent legal notice dated 25.11.2016 which was refused by defendant on 28.11.2016. Defendant failed to provide peaceful possession of the suit property to the plaintiff. Defendant has not paid rent since June 2015 CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 3of 32 and is in arrears of rent alongwith electricity and water to the tune of Rs.1,71,000/- from June 2015 to December 2015. However, the plaintiff is claiming rent, water and electricity charges from January 2016 onwards as the plaintiff became the owner of the suit property in January 2016. Accordingly, the arrears claimed by the plaintiff is Rs. 1,08,000/- (Rent Rs.96,000/- and Rs.12,000 for electricity and water).
11. In the background of these facts, the plaintiff has filed the instant suit for recovery.
WRITTEN STATEMENT FILED BY THE DEFENDANT :-
12. In the Written Statement, the defendant raised the following preliminary objections:-
i. Plaintiff in collusion with the other legal heirs of the original landlord of the defendant i.e. late Sh. Mohan Singh Sethi, is disturbing the lawful possession of the defendant in respect of suit property. The plaintiff filed the present suit with an intention to harass the defendant;
ii. Plaintiff has approached this Court with dishonest and mischievous intent and has concealed and suppressed material facts from this Court. In the month of November, 2000 the defendant was inducted as a tenant in the suit property by late Shri Mohan Singh Sethi at a rent of Rs. 1000/- per month exclusive of the electricity and water charges. It was an oral tenancy and no Rent Agreement was executed between the parties. The defendant had a very cordial relationship with Late Shri Mohan Singh Sethi (who was more than 80 years of age at that juncture) and she used to take care of him as her own father. Shri Mohan Singh Sethi also used to treat the defendant as his daughter and he asked the defendant to stay CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 4of 32 in the suit property for her entire lifetime paying a symbolic rent of Rs. 1000/- only. Infact, Shri Mohan Singh Sethi told the defendant that before his death, he would be executing a Will in which he would be specifically mentioning that the defendant would be entitled to reside in the suit property throughout her lifetime on payment of a symbolic rent of Rs. 1000/- per month.
iii. The defendant diligently paid rent to Late Shri Mohan Singh Sethi till his unfortunate demise on 30.03.2012 and continued to pay rent of Rs. 1000/- per month to his wife Smt. Harjinder Kaur, who unfortunately expired on 15.02.2014. Even after the death of Smt. Harjinder Kaur, the defendant continued to pay rent at the rate of Rs. 1,000/- per month to her daughter Smt. Jasbir Kaur till the month of February, 2017. Even during the pendency of the present suit, the defendant had tendered the rent to Smt. Jasbir Kaur for the month of March and April 2017. However, she refused to accept the same owing to the pendency of the present suit;
iv. The plaintiff is not entitled to any rent from the defendant as the plaintiff is not the landlord of the defendant and the defendant has never paid rent to the plaintiff;
v. The Relinquishment Deeds dated 20.11.2015 purportedly executed by Shri Pritam Pal Singh Sethi, Smt. Jasbir Kaur Chadha and Shri Jaideep Singh Sethi and the Relinquishment Deed dated 27.11.2015 purportedly executed by Shri Simran Singh Sethi in favour of the plaintiff, are forged and fabricated documents;
vi. Shri Mohan Singh Sethi had specifically instructed all his heirs that the peaceful possession of the defendant over the suit property should not CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 5of 32 be interfered with during her lifetime and that she would be allowed to stay in the suit property for her whole life at a fixed rent of Rs. 1,000/- per month. Therefore, no Relinquishment Deed in respect of the portion in occupation of the defendant could have been executed;
vii. The plaintiff has filed forged rent agreements and rent receipts and is liable for perjury;
viii. Present suit filed by the plaintiff is also barred under the provisions of Section 50 of the Delhi Rent Control Act, 1958 as the rent being paid by the defendant in respect of the suit property is only Rs. 1000/-p.m. Therefore, this Court has no jurisdiction to entertain the present suit as the same is barred by the provisions of the Delhi Rent Control Act, 1958;
ix. No cause of action has arisen in favour of the plaintiff and against the defendant and therefore, the suit is bad for want of cause of action under the provisions of Order 7 Rule 11 CPC.
13. In para-wise reply on merits, the defendant denied the averments made in the plaint. She denied that the plaintiff is the absolute owner of property bearing no. G-13, entire ground floor, first floor & terrace, Jangpura Extension, New Delhi-110014. Any ownership transferred in respect of the suit property would be subject to the occupancy rights of the defendant. The defendant entered into an oral agreement with late Sh. Mohan Singh Sethi and as such was a tenant of Late Sh. Mohan Singh Sethi. However, it is denied that the rent was Rs. 5000/- per month. No rent agreement was ever executed between the parties and no rent receipt was issued in favour of the defendant. The defendant never agreed to pay rent for fixtures / fittings. It is denied that the defendant was informed about the change in the ownership CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 6of 32 status of the suit property. The defendant was instructed by late Sh. Mohan Singh Seth to pay the rent to his wife after his death and to the daughter Ms. Jasbir Kaur Chadha after his wife's demise. Late Sh. Mohan Singh Sethi had expressed his clear intention that the defendant would be permitted to reside in the suit property for her entire life on the payment of a fixed nominal rent of Rs. 1000/- per month excluding water and electricity charges. Defendant never had any conversation pertaining to vacating the suit property and entering into a rent agreement with the plaintiff. It is denied that the defendant received any legal notice dated 25.11.2016. There is no question of arrears of rent as the defendant has paid all the dues including water and electricity charges till February 2017.
REPLICATION FILED BY THE PLAINTIFF:-
14. In the replication, the plaintiff reiterated the contents of the plaint and denied the preliminary objections and averments in the Written statement as false and frivolous.
ISSUES:-
15. After completion of pleadings, the following issues were framed by the Ld. Predecessor of this Court vide order dated 30.05.2018:-
i) Whether no cause of action has arisen in favour of the plaintiff to institute the present suit, she having no locus standi to file the same against the defendant for the reliefs prayed? OPD
ii) Whether the suit is barred under section 50 of the Delhi Rent Control Act? OPD
iii) Whether the plaintiff is entitled to the relief of possession qua the suit CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 7of 32 property? OPP
iv) Whether the plaintiff is entitled for recovery of arrears of rent along with interest, as prayed? OPP
v) Whether the plaintiff is entitled to mesne profit along with interest, as prayed, as occupation charges till the vacation of the suit property? OPP
vi) Relief.
PLAINTIFF'S EVIDENCE: -
16. In plaintiff evidence, the plaintiff deposed as PW-1, vide affidavit of evidence exhibited as Ex.PW1/1 bearing her signature at point A and B, wherein she reiterated the contents of the plaint. For the sake of brevity and to avoid repetition, the contents are not being reproduced again. The plaintiff relied upon the following documents:-
S. Documents Exhibits
No.
1. Rent agreement in the year 2000 Deexhibited and marked
as Mark 'D'.
2. Rent agreement dated 10.01.2001 and Deexhibited and marked
agreement for fixtures/ fittings as Mark "E" and Mark
"F" respectively.
3 Will dated 29.08.2005 executed by Sh. Ex. PW1/C (OSR)
Sardar Mohan Singh Sethi
CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 8of 32
4 Relinquishment Deed dated 20.11.2015 Ex. PW1/D (colly)
executed by Mr. Pritam Pal Singh Sethi, (OSR).
Mrs. Jasbir Kaur Chaddha and Mr. Jaideep
Singh Sethi in favour of Mrs. Kanwal
Sethi(plaintiff) & Relinquishment Deed
dated 27.11.2015 executed by Mr. Simran
Singh Sethi in favour of Mrs. Kanwal
Sethi(plaintiff)
5 Legal Notice dated 25.11.2016 sent to the Ex. PW-1/E
defendant
6 Courier and speed post receipt, tracking Ex. PW-1/F(colly)
report and original return envelope
7 Copy of eight rent receipts Deexhibited and marked
as Mark 'A'(colly)
8 Copy of lease deed Deexhibited and marked
as Mark 'B'
9 Copy of collaboration agreement dated Deexhibited
29.04.1997 and marked as Mark 'C'
17. PW-1 was duly cross examined by the Ld. Counsel for defendant.
18. Thereafter Sh. Inder Mohan, the witness to the rent agreement Mark E and Mark F, deposed as PW-2, vide affidavit of evidence exhibited as Ex.PW2/A bearing his signature at point A and B. He relied upon the documents Mark E and Mark F (colly). He deposed that he was a witness to the rent agreement and the agreement for fixture and fitting, executed on 10.01.2001 between Late Sh. Mohan Singh Sethi and Smt. Ranjana Aggarwal and that they had signed the rent agreement in his presence and he CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 9of 32 had signed as a witness on the last page of the agreement. PW-2 was duly cross examined by the Ld. Counsel for the defendant.
19. Thereafter, Ms. Jasbir Kaur Chadha, the sister-in- law of the plaintiff and the daughter of Late Sh. Mohan Singh Sethi, deposed as PW-3, vide affidavit of evidence exhibited as Ex.PW3/A bearing her signature at point A and B. She relied upon the documents already marked as Mark A (colly) (page no. 22 to 29). She deposed in line with the deposition of PW-1. PW-3 was duly cross examined by the Ld. Counsel for defendant.
20. Vide separate statement of the counsel for the plaintiff, the plaintiff evidence was closed on 05.09.2022. The matter was then listed for defendant evidence.
DEFENDANT'S EVIDENCE:-
21. In defence evidence, the defendant deposed as DW-1, vide affidavit of evidence exhibited as Ex.DW1/A bearing her signature at point A and B, wherein she reiterated the contents of the Written Statement. For the sake of brevity and to avoid repetition, the contents are not being reproduced again.
22. DW-1 was duly cross examined by the Ld. Counsel for plaintiff.
23. Vide separate statement of the counsel for the defendant, the defendant evidence was closed on 27.01.2023. The matter was then listed for final arguments.
FINAL ARGUMENTS:-
24. Final arguments were advanced by Ld. Counsels for both the parties.
Ld. Counsel for the plaintiff argued that the plaintiff is entitled to a decree on CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 10of 32 the basis of Written documents i.e rent agreements, rent receipts and relinquishment deed. The parties had entered into a rent agreement where rent was Rs. 3,500/- and charges for fixture was Rs. 1,500/-, the total amount of rent being Rs. 5,000/-. The last rent paid by the defendant was Rs. 8,000/- plus Rs. 1,000/- for electricity. The defendant has not been able to prove her averments with respect to rent being Rs. 1,000/- only and has not produced any document to prove her assertions. The defendant has admitted her signatures in the rent agreements and yet claimed that the said rent agreements are forged and fabricated. Despite multiple requests and issuance of legal notice, the defendant has failed to vacate the suit property and the plaintiff is entitled to the relief of possession and arrears of rent and damages.
25. Ld. Counsel for the defendant argued that the plaintiff has not been able to show that the rent of the suit property is more than Rs. 3,500/- as even as per the rent agreement filed by the plaintiff, the rent was only Rs. 3,500/-. Hence, the suit is barred by Section 50 of the Delhi Rent Control Act. The plaintiff has failed to prove the documents relied upon by her and the witnesses have made contrary submissions in the cross examination. The admission of signatures does not amount to execution of the document and hence the defendant has nowhere admitted the execution of rent agreement. The suit is liable to be dismissed.
26. The parties had also filed written arguments. I have heard the submissions advanced by Ld. Counsels for both the parties, perused their written arguments and the entire case record meticulously.
CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 11of 32 ISSUE-WISE FINDINGS: -
Issue no. ii) Whether the suit is barred under section 50 of the Delhi Rent Control Act? OPD
27. The defendant has asserted that the instant suit is barred under Sec. 50 of the Delhi Rent Control Act since the rent of the suit property is Rs. 1000/-. Per contra, the plaintiff has asserted that the initial rent of the suit property was Rs. 5000/- per month which stood increased to Rs. 8000/- per month and hence, the suit is not barred under Sec. 50 of the Delhi Rent Control Act. The burden to prove this issue lies upon the defendant.
28. Section 3 of the Delhi Rent Control Act clearly provides that the Act will not apply to cases where rent exceeds Rs. 3,500/- per month. Section 50 of the Delhi Rent Control Act bars the jurisdiction of civil courts in matters where the Act applies. Therefore, in cases where rent of the suit property is less than Rs. 3,500/-, the jurisdiction of the civil court is barred.
29. In the Written statement, the defendant has asserted that she was inducted as a tenant in the suit property in the month of November 2000, by the original landlord that is late Sh. Mohan Singh Sethi at a rent of Rs. 1,000/- per month, exclusive of electricity and water charges. She has denied entering into a rent agreement and asserted that it was an oral tenancy and since she used to take care of Sh. Mohan Singh Sethi as her own father, he had asked the defendant to stay in the suit property for her life at a symbolic rent of Rs. 1000/- only.
30. To prove her assertion, the defendant deposed as DW-1, wherein in the evidentiary affidavit, she reiterated the assertions made in the written CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 12of 32 statement. The burden to prove that the rent was Rs. 1000/- was on the defendant. However, it is a matter of record that the defendant has not placed any document to show that she was paying the rent of Rs. 1000/- only to the landlord. No bank statement or rent receipt has been furnished by the defendant.
31. Further, during cross examination, when the counsel for the plaintiff asked the defendant to explain the meaning of the word 'symbolic rent' mentioned in the written statement, she answered that it was for electricity and water. However, this is in direct contrast with what has been mentioned in paragraph 2 of the written statement, wherein the defendant has specified that the rent of Rs. 1000/- per month was exclusive of electricity and water charges. This shows that the defendant does not have clarity regarding her own submissions qua the alleged amount of rent of Rs. 1000/-.
32. Again, during cross examination, the defendant has multiple times voluntarily stated that she was paying no rent, while in the written statement she has asserted that she was paying rent of Rs. 1000/-. Again, at one point during cross examination, the defendant stated that the initial rent of property was Rs.5,000/- and immediately after that, corrected herself and stated that it was Rs.1,000/-. Further, the defendant, in her cross examination, has contradicted her stand in the Written statement that she used to pay the rent initially to Sh. Mohan Singh Sethi, after his demise to his wife and after his wife's demise to his daughter, by denying the same. Ld. Counsel for the defendant argued that during cross examination, when the defendant said that she was not paying rent, she meant to say that she was paying only a symbolic rent of Rs. 1000/-. Even if this assertion of the counsel for the defendant is believed as it is and the contradictions in the cross examination are ignored, there is still nothing on record to prove that CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 13of 32 the defendant was paying rent of Rs. 1000/- only.
33. The next obvious question is whether the plaintiff has been able to show that the rent of the suit property was Rs. 8,000/- per month. The plaintiff has relied upon the rent agreement marked as Mark D and the rent agreement marked as Mark E and Mark F. The rent agreement Mark D was not filed in original by the plaintiff and no reason for furnishing photocopy of the same was explained by the plaintiff. Similarly, the plaintiff has filed eight rent receipts marked as Mark A, all of them are photocopies and no reason for furnishing photocopies of the same was explained by the plaintiff.
34. At this stage, it is pertinent to refer to the relevant provisions of the Indian Evidence Act. Section 64 provides that documents must be proved by primary evidence except in specific cases mentioned in Section 65. Section 65 of the Act, provides for specific cases where secondary evidence may be given of the existence, condition or contents of a document. Section 64 and 65 of Indian Evidence Act are as follows:-
"Section 64 of Evidence Act" Proof of documents by primary evidence - Documents must be proved by primary evidence except in the cases hereinafter mentioned."
"Section 65 of Evidence Act "Cases in which secondary evidence relating to documents may be given - Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:-
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved , or of any person out of reach of, or not CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 14of 32 subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it,
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
e) when the original is public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible.
CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 15of 32 In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
35. Further, I find it pertinent to refer to a recent case titled as Jagmail Singh v Karamjit Singh, on 13 May 2020, wherein the Hon'ble Supreme Court, observed that -
"A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished."
36. Therefore, the law is well settled that first, the plaintiff has to prove that he is unable to produce the original document since he is covered under Section 65 of the Evidence Act i.e either the document is with the other party or he has lost it or destroyed it etc. Second, once he has proved that he is covered under either of the subsections of Section 65, he has to prove that he CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 16of 32 has fulfilled the conditions of that particular Sub section.
37. However, in the instant case, the plaintiff has given absolutely no reason for filing photocopies of the documents. When the basis of leading secondary evidence itself remains unestablished, secondary evidence of a document cannot be considered and relied upon. Thus, the documents marked as Mark A and Mark D cannot be relied upon for the purpose of this adjudication.
38. Therefore, the only documents placed on record, which can be looked at by the court for the purpose of this issue are Mark E and Mark F, Mark E is the rent agreement executed between Sh. Mohan Singh Sethi and the defendant on 10.01.2001, for the period of 11 months, starting from 11.11.2000 to 10.09.2001, which mentioned the rent to be Rs. 3500/- per month including water charges. Mark F is an agreement for fixtures and fittings executed between Smt. Harjinder Kaur, w/o Sh. Mohan Singh Sethi, which provided that the monthly hire charges for fixtures and equipment installed in the suit property like ceiling fan, tube light, geyser, exhaust fan, wash basin, cupboards and sink, for 11 months, shall be Rs. 1500/- per month. However, this agreement is not dated.
39. To prove these agreements, the plaintiff examined the witness to these agreements, (since the executor of these agreements have already expired) Sh. Inder Mohan Singh as DW-2 who deposed that these agreements were made and executed in his presence and the total amount of rent was fixed at Rs. 5,000/- per month. He was cross-examined by the Ld. Counsel for the defendant, however, there is no material contradiction elicited which could discredit the deposition of the witness.
CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 17of 32
40. The defendant has denied these agreements and asserted that they are forged and fabricated.
41. Further, Ld. Counsel for the defendant argued that even if this agreement is believed to be true, the last documented rent still was Rs. 3,500/- per month, which again means that the suit is hit by Section 50 of the Delhi Rent Control Act. Ld. Counsel for the plaintiff argued that the total rent has to be seen, which includes the cumulative amount payable by the defendant under the rent agreement Mark E and the agreement for fixtures and fittings Mark F, which means that the rent was Rs. 5000/-.
42. Thus, the question to be determined here, is whether the amount payable for fixtures and fittings in the second agreement Mark F can be considered as part of 'rent'.
43. In the regard, I find it pertinent to refer to the cases where the Hon'ble Delhi High Court has dealt with similar questions. In the case of "West Coast Paper Mills Ltd. vs Smt. Asha Kapoor (2007) 97 DRJ 548 where a similar question was raised and there were two agreements executed between the parties, one for rent and another for fixtures and fittings, the Hon'ble High court observed that-
"The simultaneous execution of the two agreements, the identical tenure, advance payment for the same period of six months under both agreements and payment of the consolidated amount of Rs. 3000/- every month by means of a single cheque up to the institution of the suit, go to show beyond doubt that both agreements were intended to constitute one integral whole. The items mentioned in the schedule of agreement Ex. PW CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 18of 32 included three gysers, 18 ceiling fans and six cupboards. These items could not have been utilised without the premises which were let out under agreement Ex. PW1/1. As a matter of fact, cupboards must have been embedded in the premises. Then Clause 7 of agreement Ex. PW1/2 clinches the issue. It leaves no doubt that the agreement Ex. PW1/2 in respect of fittings and fixtures could not have been terminated so long as the lease of the premises was continuing. Therefore, I have no doubt that Ex. PW1/1 and PW1/2 constituted one single contract and the agreed rent at the inception of tenancy was Rs. 3000/- per month."
44. Further, the Hon'ble High court held that-
"The word 'rent' included not only what is originally described as rent in the Agreement but also those payments which are made for amenities provided by the landlord under the Agreement and rent includes all payments agreed to be paid by the tenant to his landlord for use and occupation not only of the building but also for furnishing, electrical installations and other amenities; the payment towards maintenance charges of the premises rented out and also for providing amenities to the tenant, is rent; accordingly, the charges payable in that case by the tenant to the landlord for furniture and fixtures were held to be part of rent and the premises were thus held to be outside the purview of the Rent Act"
45. Similarly in the case of Inder Vijay Singh Vs. NDMC (1995) Rajdhani Law Reporter 254, a Division Bench of the Hon'ble Delhi High CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 19of 32 Court included the payment of hire charges of air conditioners in rent for the purposes of determining the rateable value and house tax of the premises;
46. Again, in the case of Lalit Madhan vs Pramod Kalra on 10 January, 2014, the Hon'ble Delhi High court referred to the judgment of West Coast Paper Mills Ltd. Vs. Asha Kapoor (2007) 97 DRJ 548, Inder Vijay Singh Vs. NDMC (1995) Rajdhani Law Reporter 254, Sewa International Fashions Vs. Smt. Suman Kathpalia 82 (1999) DLT 104, Standard Pharmaceuticals Ltd. Vs. Gyan Chand Jain 97 (2002) DLT 290 and Annick Chaymotty @ Devayani Vs. Prem Mohini Mehra 95 (2002) DLT 312 and held that the consistent view of the Delhi High court needs to be followed which is that maintenance charges are to be considered as part of rent.
47. Perusal of all the above cited judgments show that the Hon'ble Delhi High Court has consistently and continuously held that rent includes payments which are made by the tenant for all the amenities provided by the landlord including furnishings, fixtures, installations and maintenance.
48. In the instant case as well, though there were two agreements, one for rent and another for charges for fittings and fixtures, these agreements constituted one whole because-1)they were executed for the same tenure with the defendant, 2) they were executed on the same date as confirmed by the witness PW-2, 3) the payment of Rs.1,500/- was to be made for the purposeful use and occupation of the suit property since without these amenities and fixtures the suit property could not have been used properly, 4) the agreement for fixtures and fittings Mark F could not have been terminated without the termination of rent agreement Mark E, and, 5) as discussed in the above cited case, rent includes all payments agreed to be paid by the tenant to his landlord for use and occupation not only of the CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 20of 32 building but also for furnishing, electrical installations and other amenities.
49. Thus, the intention of the parties was to constitute both the agreements as one. Accordingly, it becomes clear that the last documented rent is Rs. 5,000 which includes Rs. 3,500/- and Rs. 1,500/- for fittings and fixtures, and neither Rs. 8,000/- as claimed by the plaintiff nor Rs. 1,000/- as claimed by the defendant.
50. The above discussion shows that the plaintiff has proved the existence of the document by producing the original, has proved the genuineness and veracity of the agreements by examining the witness to these agreements and has also proved that the last documented rent was Rs. 5000/-. The burden now shifts on the defendant to prove otherwise. The defendant has claimed that these agreements are forged and fabricated and were never executed. However, during cross examination when she was asked to identify the signatures at point X-1 to X-9 of the rent agreement, she stated that these are her signatures.
51. On one hand, the defendant has denied the rent agreement and on the other hand she has admitted her signatures. Ld. counsel for the plaintiff argued that this is an admission enough to show that the defendant has admitted signing of the rent agreement. Per contra, Ld. counsel for the defendant argued that mere admission of the signatures by the defendant does not amount to its execution. She relied upon the judgment of the Hon'ble Supreme Court of India titled as 'Veena Singh Vs. The District Registrar/ Additional Collector and Anr' decided on 10.05.2022 wherein the Hon'ble Supreme Court held that -
"Execution of a document does not stand admitted merely CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 21of 32 because a person admits to having signed the document. Such an interpretation accounts for circumstances where an individual signs a blank paper and it is later converted into a different document, or when an individual is made to sign a document without fully understanding its contents. Adopting a contrary interpretation would unfairly put the burden upon the person denying execution to challenge the registration before a civil court or a writ court, since registration will have to be allowed once the signature has been admitted. "
52. The Ld. Counsel for the defendant is absolutely right that mere admission of signatures by the defendant do not amount to admission of execution of the document. However, the burden of the defendant does not end here by merely making an averment that the document is forged and fabricated when the plaintiff has been able to establish the genuineness of the document. It was incumbent upon the defendant to take further steps to establish and prove that the rent agreements Mark E and Mark F were actually forged and fabricated. However, the defendant has led no evidence to prove that the documents were forged and fabricated.
53. In light of the above discussion, I am able to conclude that the rent of the premises was Rs. 5,000/-. Consequently, the suit is not hit by Section 50 r/w Section 3 of Delhi Rent Control Act. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
Issue (i) Whether no cause of action has arisen in favour of the plaintiff to institute the present suit, she having no locus standi to file the same against the defendant for the reliefs prayed? OPD CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 22of 32
54. The defendant has asserted that the plaintiff has no locus standi to file the instant suit and she has asserted that the plaintiff has prepared forged relinquishment deeds to claim her locus in the instant suit. However, the defendant has led no evidence to prove that the relinquishment deeds filed by the plaintiff are forged and fabricated. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
Issue (iii) Whether the plaintiff is entitled to the relief of possession qua the suit property? OPP
55. The burden to prove this issue lies on the plaintiff.
56. Before proceeding with the discussion on this issue, I find it pertinent to refer to the case of Nanak Ram Jaisinghani vs Tilak Raj Salooja & Ors. RSA no. 131/2013, wherein it has been held by the Hon'ble Delhi High Court that: -"In Delhi, for a suit to be maintainable in a civil court against a tenant, there are three requirements: -(i) There was a relationship of landlord and tenant between the parties. (ii) The rate of rent is more than Rs.3,500/- per month. (iii) Notice was served under Section 106 of the Transfer of Property Act, 1882 terminating the tenancy."
57. The same has also been held in the case of Jindal Dyechem Industries Pvt. Ltd. vs Pahwa International Pvt. Ltd. 2009 Delhi High Court, IA no. 5765/09. Thus,it is clear that in the cases relating to eviction of a tenant, the law has been established that the landlord is entitled to a decree of possession by way of eviction of a tenant if the three conditions mentioned above are fulfilled.
58. Now coming to the instant case, the tenancy has been admitted by the defendant and it has already been discussed that the rent was Rs. 5000/- per CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 23of 32 month. The third requisite condition is that notice under Section 106 of Transfer of Property Act must be served. The plaintiff has asserted that the defendant was served with notice. On the other hand, the defendant has asserted that she never received the notice. However , the tracking report and the speed post envelope filed by the plaintiff exhibited as Ex. PW1/F, shows that the notice was refused by the defendant on 28.11.2016. Thus, she is deemed to be served with notice. Be that as it may, even if the averment of the defendant is believed as it is, the Hon'ble High court in the case of M/s. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr. (2011) 183 DLT 712, has held that: -
"In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the appellant/defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 CPC can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003 and as per which CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 24of 32 Amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises."
59. In view of the above case, service of summons in the suit for possession upon the defendant can be deemed as service of notice under Section 106 of the Transfer of Property Act. Therefore, even if the submission of the defendant is believed that she was not served with notice, service of summons in this case fulfills the requirement of service of notice. Accordingly, all the three prerequisites for decreeing a suit for possession, as required by law stand proved.
60. Thus, the plaintiff is entitled to the relief of possession and the defendant is directed to hand over the physical, peaceful and vacant possession of the suit property to the plaintiff within 3 months from the date of this judgment. 2
61. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
Issue (iv):- Whether the plaintiff is entitled for recovery of arrears of rent along with interest, as prayed? OPP 2 Since the defendant is a senior citizen of 76 years, a reasonable time of three months is granted to the defendant to vacate the suit property.
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62. The plaintiff has claimed an amount of Rs. 1,08.000/-, out of which Rs. 96.000/- is the arrears of rent from January 2016 and Rs. 12,000/- is for electricity and water. The plaintiff has claimed arrears of rent at the rate of Rs. 8000/- per month. However, as discussed in issue no.(ii), the plaintiff has not been able to prove that the last rent paid by the defendant was Rs. 8000/- per month. On the other hand, the defendant, has claimed in the Written Statement that she has paid her dues till February 2017. There are three problems in this submission, first, that the amount, if any paid by the defendant would be Rs. 1,000/- per month, secondly, the defendant has not filed any proof of payment of Rs. 1,000/- also, thirdly, the defendant has admitted in her cross examination that she has not paid any rent from June 2015. Therefore, the plaintiff shall be entitled to recover arrears of rent from January 2016 to December 2016 at the rate of Rs. 5,000/- per month which totals to Rs. 60,000/-. Further, there is no document placed on record by the plaintiff to prove that Rs. 12,000/- is due against electricity and water. Hence, such an amount cannot be granted.
63. Accordingly, the issue stands partly decided in favour of the plaintiff and against the defendant.
Issue no. (v)- Whether the plaintiff is entitled to mesne profit along with interest, as prayed, as occupation charges till the vacation of the suit property? OPP
64. The plaintiff has claimed damages/ mesne profits at the rate of Rs.
2,000/- per day along with rent at the rate of Rs. 8,000/- and Rs. 1,000/- electricity and water with interest at the rate of 18 percent per annum, towards use and occupation charges of suit property till the vacation of the suit property. The claim of Rs. 2,000/- per day is on the face of it CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 26of 32 unreasonable, unjustified, excessive and penal in nature, which cannot be granted.
65. Now, coming to the claim of Rs.8,000/- as occupation charges, it is pertinent to note that the plaintiff has neither examined any local property dealer, neighbour etc., who may have rented out a property similar to that of the suit property, from the year 2017 to 2023 at rent of Rs 8,000/- per month nor tendered in evidence any rent agreement, reflecting the renting out of property, similar to the suit property, around the same period.
66. Thus, the plaintiff cannot be held to be entitled to the amount of Rs.8,000/- per month as damages. However, the law with respect to the same has been laid down by the Hon'ble Delhi High Court in the case of M/s M.C. Agarwal HUF Vs. M/s. Sahara India and Ors. 183 (2011) DLT 105, followed in the cases of State Bank of India v. Dr. Meena Luthra and ors 2017 SCC Online Del 9513 and M/s. Basant & Co. vs M/s. Osram India Pvt. Ltd 2018 SCC Online Del 7776 wherein the Hon'ble court has held as follows-
"What is now therefore to be determined is that what should be the mesne profits which should be awarded to the landlord in the absence of any evidence having been led by the landlord with respect to the rents prevalent in the area. Though it has not been argued on behalf of the landlord, I would like to give benefit to landlord of various precedents of this Court and the Supreme Court which take judicial notice of increase of rent in the urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. In my opinion, considering that the premises are situated in one of the most centrally located CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 27of 32 commercial localities of Delhi, situated in Connaught Place, an increase of 15% every year should be awarded (and nothing has otherwise been shown to me for the increase to be lesser) during the period for which the tenants have over stayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 3.4.2005. I rely upon and refer to a Division Bench judgment of this Court in the case of S. Kumar Vs. G.R. Kathpalia 1999 RLR 114, and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profits at a rate higher than the contractual rate of rent."
67. Therefore, the Hon'ble Delhi High Court has clearly laid down the law that in cases where the landlord does not lead any evidence with respect to the rents prevalent in the area, the landlord should be granted mesne profit / damages at reasonable rates as per the location of the suit property. In the instant case, considering the location of the suit property, I deem it fit to award mesne profit at an increase of 10% every year from the last documented rent, for the period over stayed by the defendant in the suit property. The arrears of rent have already been granted to the plaintiff till December 2016. The tenancy expired after 15 days of receipt of legal notice. As per the tracking report exhibited as Ex.PW1/E, the legal notice was refused by the defendant on 28.11.2016. Thus, the tenancy expired CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 28of 32 somewhere in December 2016. Thus, the plaintiff is entitled to recover mesne profits from January 2017 till the date of the decree at the following rates:-
i. Rs.5,500/- per month for the period from January 2017 to December 2017;
ii. Rs. 6,050/- per month for the period from January 2018 to December 2018;
iii. Rs. 6,655/- per month for the period from January 2018 to December 2018;
iv. Rs. 7,320/- per month for the period from January 2019 to December 2019;
v. Rs. 8,052/-per month for the period from January 2020 to December 2020;
vi. Rs. 8,857/- per month for the period from January 2021 to December 2021;
vii. Rs. 9743/- per month for the period from January 2022 to December 2022;
viii. Rs. 10,717/- per month for the period from January 2023 to the date of decree.
68. The plaintiff will also be entitled to recover interest on mesne profits at the rate of 10% per annum from the end of the month for which mesne profits are payable till the amount is paid by the defendant to the plaintiff.
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69. The amount of Rs.5,000/- paid by the defendant as interest free security, mentioned in paragraph 8 of the rent agreement marked as Mark E, will be adjusted against the mesne profits payable by the defendant to the plaintiff.
70. Further, as far as Rs. 1000/- for electricity is claimed, such amount cannot be granted without any basis. There is no document to show the electricity consumed by the defendant and the per unit cost of the same. Without any document to substantiate the claim of the plaintiff, no amount can be granted for electricity. Also, the rent includes water charges, as mentioned in the rent agreement Mark E and hence no separate amount for water can be granted.
71. Accordingly, this issue is partly decided in favour of the plaintiff and against the defendant.
RELIEF:-
72. In view of the aforesaid discussion, the facts and circumstances of the case, the findings given in the above issues, documents placed on record and evidence led by the parties, the suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is held entitled to the following reliefs-
i. The relief of possession- the defendant is directed to hand over the peaceful, physical and vacant possession of the suit property i.e rear portion right side of the property bearing No. G-13, ground floor, Jangpura Extension, New Delhi-110014, to the plaintiff, within 3 months from the date of this judgment;
ii. The relief of recovery of arrears of rent- the plaintiff is entitled to CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 30of 32 recover Rs.60,000/- as arrears of rent for the period starting from January 2016 to December 2016 along with interest at the rate of 6% per annum from the date of filing of the suit till date of realisation;
iii. The relief of recovery of Mesne profit/ damages- the plaintiff is entitled to recover mesne profit/ damages at the following rates-
1. Rs.5,500/- per month for the period from January 2017 to December 2017;
2. Rs.6,050/- per month for the period from January 2018 to December 2018;
3. Rs.6,655/- per month for the period from January 2018 to December 2018;
4. Rs.7,320/- per month for the period from January 2019 to December 2019;
5. Rs.8,052/-per month for the period from January 2020 to December 2020;
6. Rs.8,857/- per month for the period from January 2021 to December 2021;
7. Rs.9,743/- per month for the period from January 2022 to December 2022;
8. Rs.10,717/- per month for the period from January 2023 to the date of decree.
iv. The plaintiff is also entitled to recover interest on mesne profits at the CS SCJ 64/17 Kanwal Sethi Vs. Ranjana Aggarwal Page no. 31of 32 rate of 10% per annum from the end of the month for which mesne profits are payable till the amount is paid by the defendant to the plaintiff;
v. The amount of Rs.5,000/- paid by the defendant as interest free security, mentioned in paragraph 8 of the rent agreement marked as Mark E, will be adjusted against the mesne profits payable by the defendant to the plaintiff.
73. Cost of the suit is awarded to plaintiff.
74. Decree sheet be prepared after supply of additional court fees by the plaintiff.
75. File be consigned to record room after due compliance.
CHITRANSHI Digitally signed by CHITRANSHI
ARORA
ARORA Date: 2023.06.08 15:27:33 +05'30'
Pronounced in the open court (Chitranshi Arora)
Today on 08.06.2023 CJ-02, South-East,
Saket Court, ND
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