Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 6, Cited by 0]

Delhi District Court

Smt. Mala Mehrotra vs Sh. Atul Kanji on 28 January, 2013

                     IN THE COURT OF SHRI BALWANT RAI BANSAL 
                          ADDITIONAL SENIOR CIVIL JUDGE,
                             SAKET COURTS, NEW DELHI


CS NO. 484/11


Smt. Mala Mehrotra
W/o Sh. Piyush Mehrotra
R/o 914, Liberty Ct,
Cupertino, CA 95014, USA
Through her attorney Sh. S.D. Prasad 
                                                                                                                 ..... Plaintiff 
                                                                           Vs.
      1. Sh. Atul Kanji
         House No. B­47, 
         Sector­56, Noida (U.P.)
         Also at
            Flat No. 3, Pocket­D, 
            Narmada Apartments, 
            Alaknanda, New Delhi - 110019
      2. Sh. Hemant Kanji
         Flat No. 3, Pocket­D, 
         Narmada Apartments, 
         Alaknanda, New Delhi - 110019
                                                                                                                  ..... Defendants


          SUIT FOR RECOVERY OF POSSESSION, MESNE PROFITS/ 
                     DAMAGES AND INJUNCTION

CS No. 484/11                                                                                                                                 Page 1 of  28
             DATE OF INSTITUTION                                                                      :            07.08.2010
            DATE OF RESERVING JUDGMENT                                                               :            08.01.2013
            DATE OF PRONOUNCEMENT                                                                    :            28.01.2013


 JUDGMENT

1. Vide this judgment I shall dispose of present suit filed by the plaintiff for recovery of possession, mesne profits and injunction against the defendants.

2. Brief facts as set out in the plaint are that the plaintiff is the owner of Flat bearing No. 3, Pocket­D, Narmada Apartments, Alaknanda, New Delhi. Defendant no. 1 is a tenant of the said flat on a monthly rent of Rs. 12,000/­ after its periodical increase. It is stated that since inception of tenancy, rent has been paid through the accounts of M/s Resource International, a firm of defendant no. 1 directly in the accounts of the plaintiff and her father Sh. S.D. Prasad as the plaintiff was residing abroad and Sh. S.D. Prasad looks after the property. Defendant no. 2 is the son of defendant no. 1 and residing in the suit premises. The plaintiff vide her E­mail dated 15.02.2010 called upon the defendants to vacate the flat by 15.04.2010. The defendants in the year 2009 on the request of the plaintiff had agreed to vacate the flat, but they sought time since the flat purchased by them was not ready. CS No. 484/11 Page 2 of 28 However, despite accommodating the defendants, they instead of vacating the flat started raising illegal demands of payment for vacating the flat in the garb of expenses incurred on the alleged renovation in the flat. As such, the plaintiff terminated the tenancy of the defendants vide notice dated 26.05.2010 sent through Sh. Rohit Kumar, Advocate and the notice was sent through registered AD post and UPC duly served upon the defendants. The defendants were called upon to hand over the peaceful and vacant possession of the flat within 15 days after the receipt of the notice, not later than 15/16th June, 2010. However, the defendants failed to hand over the possession of the flat. Hence, the present suit.

3. The plaintiff has prayed for passing a decree for recovery of possession of the flat bearing No.3, Pocket­D, Narmada Apartments, Alaknanda, New Delhi­19, recovery of the mesne profits @ 2000/­ per day from 16.06.2010 till the handing over the peaceful possession of the suit premises, recovery of Rs. 30,000/­ as damages w.e.f. 16.06.2010 till 30.06.2010 and for injunction restraining the defendants from creating third party interest in the suit premises and from carrying out any structural changes in the suit premises.

4. The defendants contested the suit by filing the Written CS No. 484/11 Page 3 of 28 Statement contending that suit has not been instituted by the competent person and the plaint is not signed and verified as per the statutory provisions of CPC. It is stated that M/s Resource International, a firm has taken the premises on lease from the plaintiff and the said firm has been paying the rent to the plaintiff. The defendants are not the tenants of the plaintiff, rather it is M/s Resource International who is the tenant of the plaintiff. It is stated that suit is bad for non­joinder of M/s Resource International, a necessary party.

5. It is stated that present suit is not maintainable as the plaintiff has not sent any legal notice to M/s Resource International, who is actual tenant in the suit premises. It is stated that defendant no. 1 acting on behalf of M/s Resource International had informed the plaintiff in November, 2009 that the flat was in dilapidated condition and M/s Resource International had done some essential repairing works, but the flat still requires urgent repairs and renovation. The plaintiff assured that she would pay the expenditure already incurred and also requested to defendant no. 1 that M/s Resource International may carry out the repairing and renovation work on her behalf and she would reimburse the same. The plaintiff also agreed to renew the lease deed in favour of M/s Resource International . Accordingly, the CS No. 484/11 Page 4 of 28 defendant no. 1 carried out the repairing and renovation work in the flat on behalf of M/s Resource International and incurred an expenditure of Rs. 20 lakhs which they have a right to recover from the plaintiff. It is stated that plaintiff had agreed to renew the lease in favour of M/s Resource International and even sent a draft via E­mail in January, 2010, but the plaintiff visited the flat in January, 2010 and after seeing the quality of repairing and renovation, she turned dishonest.

6. The defendants have denied that defendant no. 1 is the tenant of the plaintiff. It is denied that via E­mail they were called upon by the plaintiff to vacate the suit premises. It is denied that notice was served upon them. It is denied that they are in illegal possession of the flat or they are liable to pay any damages. The defendants have prayed for dismissal of the suit.

7. The plaintiff filed replication to the written statement in which it is contended that M/s Resource International is not a tenant and the rent was paid through the accounts of the firm M/s Resource International of which defendant no. 1 is the Proprietor. It is denied that defendant no. 1 acting on behalf of M/s Resource International informed the plaintiff in 2009 that the flat is in dilapidated condition. It is denied that plaintiff had agreed to pay the expenditure incurred or plaintiff CS No. 484/11 Page 5 of 28 requested to M/s Resource International to carry out the repairing and renovation work. It is stated that the plaintiff had not agreed to renew the lease in favour of M/s Resource International as there was no lease in favour of M/s Resource International. It is denied that defendant no. 1 or M/s Resource International incurred Rs. 20 lakhs on renovation work. The plaintiff re­iterated the other averments made in the plaint and controverted the averments made in the written statement.

8. From the pleadings of the parties, following issues were framed vide order dated 24.01.2012:­

1. Whether the present suit has not been instituted by the competent person as alleged by the defendants? OPD

2. Whether the plaintiff is entitled for recovery of possession of the suit property as prayed for in the suit? OPP

3. Whether plaintiff is entitled to recover damages/mesne profits from the defendants, if so, at what rate and for which period? OPP

4. Whether the plaintiff is entitled for relief of injunction, as prayed for in prayer No. IV and V of the prayer clause of the plaint? OPP

5. Relief.

CS No. 484/11 Page 6 of 28

9. Vide order dated 16.05.2012, an additional issue was framed as under :­

1. Whether the suit filed by the plaintiff is bad for non­joinder of necessary party i.e. M/s Resource International? OPD

10. In order to prove her case, the plaintiff examined her attorney Sh. Shivaraj Deva Prasad as PW­1 who filed his evidence by way of affidavit which is Ex. P­1 in which he has deposed more or less as per the averments made in the plaint. He has also placed on record the general power of attorney in his favour as Ex. PW­1/1, copy of conveyance deed as Ex. PW­1/2, site plan as Ex. PW­1/3, legal notice as Ex. PW­1/4, UPC receipt as Ex. PW­1/5, postal receipts as Ex. PW­1/6 to Ex. PW­1/8, AD cards as Ex. PW­1/9 to Ex. PW­1/10, copy of affidavit of defendant no. 1 to MCD as Ex. PW­1/11, copy of his affidavit to the MCD as Ex. PW­1/12 and copy of assessment order as Ex. PW­1/13.

11. On the other hand, the defendants despite availing opportunity failed to lead any evidence and, therefore, evidence of the defendants was closed vide order dated 06.09.2012.

12. I have heard the Ld. Counsel for the parties and perused the record carefully.

CS No. 484/11 Page 7 of 28

13. On the basis of material available on record, my issue­wise findings are given as under:

Issue No. 1

14. The onus to prove this issue was on the defendants. Though, the defendants have taken an objection in the written statement that the present suit has not been instituted by the competent person. But, the defendants have failed to lead any evidence to prove the same .

15. A perusal of the record reveals that present suit has been filed by the plaintiff through her attorney Sh. S.D. Prasad who has examined himself as PW­1. In his examination­in­chief, PW­1 Sh. S.D. Prasad has deposed that he is the attorney of the plaintiff and competent to depose before the court. He has further deposed that he has filed the suit on behalf of the plaintiff who is also his daughter and has signed and verified the plaint as attorney of the plaintiff. He has also placed on record the General Power of Attorney executed by plaintiff in his favour as Ex. PW­1/1.

16. In the cross­examination PW­1 has categorically stated that the Power of Attorney Ex. PW­1/1 was executed by the plaintiff in his favour at Delhi. He further stated that he does not remember when it was executed and in which court it was executed but it was on Tilak Marg CS No. 484/11 Page 8 of 28 and was executed before an Oath Commissioner. He further stated that his daughter was with him when the Power of Attorney was executed by her in his favour. He denied the suggestion that his daughter was not here in Delhi when the Power of Attorney was executed by her.

17. As such, nothing material could be extracted from the cross­examination of PW­1 to shake his testimony that he is the attorney of the plaintiff vide Ex. PW­1/1 and has signed and verified the plaint as attorney of the plaintiff and is competent to depose before the court. Hence, it has been duly proved that present suit has been instituted by the competent person. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.

Additional Issue No. 1

18. The onus to prove this issue was on the defendants. The defendants have taken an objection in the written statement that present suit is bad for non­joinder of necessary party i.e. M/s Resource International. The aforesaid objection of the defendants is based on the plea taken by them in the written statement that it is M/s Resource International, a firm who is the actual tenant in the suit premises and the defendants are not the tenant in the suit premises as alleged by the plaintiff. It is also contended by the defendants that it is the firm M/s CS No. 484/11 Page 9 of 28 Resource International who has been paying the rent to the plaintiff and, therefore, M/s Resource International is a necessary party to be impleaded in the present suit. However, the defendants have not led any evidence to prove this contention.

19. On the other hand, the case of the plaintiff is that defendant no. 1 is the tenant in the suit premises on a monthly rent of Rs. 12,000/­ after periodical increase and since inception of tenancy rent has been paid through the accounts of M/s Resource International, a firm of defendant no. 1 directly in the accounts of the plaintiff and her father Sh. S.D. Prasad as she is residing abroad.

20. In the written statement, the defendants have not disputed the fact that M/s Resource International is a firm of defendant no. 1. Though, defendants have denied that they are the tenants in the suit premises and it has been contended that suit premises was let out to M/s Resource International, a firm and the said firm has been paying the rentals to the plaintiff in respect of the suit premises. But, in whole of the written statement, it has not been disclosed by the defendants that what is the constitution of the firm M/s Resource International, whether it is a proprietorship concern of defendant no. 1 or it is a partnership firm in which defendant no. 1 is one of the partner or same is a CS No. 484/11 Page 10 of 28 company. It has also been contended by the defendants that defendant no. 1 acting on behalf of M/s Resource International had informed the plaintiff in November, 2009 about the dilapidated condition of the flat and the defendant no. 1 carried out some essential repairing works in the flat on behalf of M/s Resource International. But, again it has not been disclosed that what is the status of the defendant no. 1 in the firm M/s Resource International.

21. On the other hand, PW­1 Sh. S.D. Prasad stated in his evidence that defendant no. 1 is tenant in the suit premises and since the inception of the tenancy rent has been paid through the account of M/s Resource International, a proprietorship concern of defendant no. 1. In the cross­examination also PW­1 stated that they accepted rent deposited by M/s Resource International as it was a proprietorship firm of defendant no. 1. He further stated that defendant no. 1 had told him that M/s Resource International was his proprietorship firm. Not a single suggestion has been given by the Ld. Counsel for defendants to PW­1 that M/s Resource International is not a proprietorship concern of defendant no. 1 and the testimony of PW­1 that M/s Resource International is a proprietorship concern of defendant no. 1 has gone un­ rebutted.

CS No. 484/11 Page 11 of 28

22. A proprietorship concern has no separate legal entity from its proprietor and a proprietor and his proprietorship concern are treated as one entity. Therefore, even if the rent has been paid by M/s Resource International, a proprietorship concern of defendant no. 1, it cannot be said that M/s Resource International is a necessary party in the present suit.

23. It is also to be noted here that PW­1 has stated in his evidence that defendant no. 1 had submitted an affidavit dated 12.12.1995 before the Municipal Corporation of Delhi acknowledging himself to be tenant. He further stated that he has also filed an affidavit dated 12.12.1995 before the Municipal Corporation of Delhi as the flat had been let out by him to defendant no. 1. He has also placed on record the affidavit dated 12.12.1995 submitted by defendant no. 1 to MCD as Ex. PW­1/11 and affidavit dated 12.12.1995 submitted by him to MCD as Ex. PW­1/12.

24. In the cross­examination, PW­1 stated that he had filed an affidavit with regard to the suit property with the MCD in 1995. He further stated that the affidavit was filed after there was a revision of house tax and evidence was required to show what was the rent being received of the said property from the tenant. Again, testimony of PW­1 CS No. 484/11 Page 12 of 28 regarding filing of affidavit by defendant no. 1 to MCD acknowledging himself to be tenant in the suit premises has gone un­rebutted. Not a single suggestion has been given to PW­1 that defendant no. 1 has not filed an affidavit Ex. PW­1/11 before MCD.

25. A perusal of Ex. PW­1/11 shows that same is an Affidavit filed by Sh. Atul Kanji, defendant no. 1 herein to the MCD on 12.12.1995 wherein he stated that he is living in 3, Narmada Apartments as a tenant on a rent of Rs. 3000/­ p.m. upto 31.03.1995 and Rs. 3400/­ p.m. thereafter and no lease agreement was entered into by him for this tenancy.

26. As such, it is evident from Ex. PW­1/11 that the defendant no. 1 has acknowledged himself as tenant in the suit premises. Therefore, contention of the defendants in their written statement that they are not the tenants in the suit premises and it is the firm M/s Resource International who is the actual tenant in the suit premises is not tenable. In view of above discussions , it is held that defendant no. 1 is the tenant in the suit premises and, therefore, it cannot be said that M/s Resource International, a firm of defendant no. 1 is the necessary party and the suit is bad for non joinder of necessary party i.e. M/s Resource International. Hence, this issue is decided against the CS No. 484/11 Page 13 of 28 defendants.

Issue No. 2

27. The onus to prove this issue was on the plaintiff. The case of the plaintiff is that she is the owner of Flat bearing No. 3, Pocket­D, Narmada Apartments, Alaknanda, New Delhi and the defendant no. 1 is the tenant of the said flat on a monthly rent of Rs. 12,000/­ after its periodical increase. Since inception of tenancy, rent has been paid through the accounts of M/s Resource International, a firm of defendant no. 1 directly in the accounts of the plaintiff and her father Sh. S.D. Prasad as the plaintiff was residing abroad and Sh. S.D. Prasad looks after the property. It is further case of the plaintiff that vide her E­mail dated 15.02.2010 she called upon the defendants to vacate the flat by 15.04.2010 as the defendants in the year 2009 had agreed to vacate the flat, but they sought time since the flat purchased by them was not ready. However, despite accommodating the defendants, they instead of vacating the flat started raising illegal demands of payment for vacating the flat in the garb of expenses incurred on the alleged renovation in the flat. Therefore, the plaintiff terminated the tenancy of the defendants vide notice dated 26.05.2010 sent through Sh. Rohit Kumar, Advocate by which the defendants were called upon to hand over the peaceful and CS No. 484/11 Page 14 of 28 vacant possession of the flat within 15 days, but despite service the defendants failed to hand over the possession of the flat.

28. The defendants in the written statement have not disputed the ownership of the plaintiff over the suit premises. Though, it is contended by defendants that defendant no. 1 is not the tenant in the suit premises and it is firm M/s Resource International, who is the actual tenant in the suit premises. But, this contention of the defendants is not tenable in view of my findings under Additional Issue No. 1 that it is not the firm M/s Resource International which is the tenant in the suit premises, but the defendant no. 1 is the tenant in the suit premises. It is also not in dispute that presently the rate of rent of the suit premises is Rs. 12,000/­ p.m.

29. The defendants have further taken a plea that defendant no. 1 acting on behalf of M/s Resource International had carried out some repairing and renovation work in the flat in question after taking permission from the plaintiff and incurred an expenditure of Rs. 20 lakhs. It is further alleged that the plaintiff agreed to reimburse the same and also agreed to renew the lease in favour of M/s Resource International and even sent a draft via E­mail in January, 2010, but the plaintiff visited the flat in January, 2010 and after seeing the quality of CS No. 484/11 Page 15 of 28 repairing and renovation, she turned dishonest and filed the present suit.

30. In the replication, the plaintiff has denied that she ever asked the defendants to carry out the necessary repairing works and renovation in the flat or she agreed to reimburse the expenditure incurred by the defendants on renovation of the flat or that she agreed to renew the lease in favour of M/s Resource International. Therefore, it was for the defendants to prove that plaintiff had agreed to renew the lease deed in favour of M/s Resource International after renovation of the flat to be carried out by the defendants. But, no evidence has been led by the defendants to this effect as the defendants failed to lead evidence. As such, the aforesaid contentions of the defendants remained un­substantiated.

31. On the other hand, PW­1 has categorically stated in his cross­examination that there was no major renovation carried out in the suit property except for minor work required due to seepage of water in the bathroom. He denied the suggestion that the defendants had carried out extensive renovation in the suit property after taking permission from the plaintiff.

32. The plaintiff has also claimed that she terminated the tenancy of the defendants vide legal notice dated 26.05.2010 Ex. PW­1/4 CS No. 484/11 Page 16 of 28 and defendants were called upon to hand over the peaceful and vacant possession of the flat within 15 days after the receipt of the notice, but despite service the defendants failed to hand over the possession of the flat.

33. The Ld. Counsel for defendants has vehemently argued that the defendants were not served with the legal notice Ex. PW­1/4. He further argued that even the legal notice Ex. PW­1/4 is not as per the requirement of provisions U/s 106 of Transfer of Property Act and, therefore, tenancy of the defendants cannot be said to be terminated vide legal notice Ex. PW­1/4 .

34. This argument of Ld. Counsel for defendants is based on the suggestion put to PW­1 in his cross­examination that the instructions to sent the notice was given by his daughter and not by him which was denied by PW­1. The Ld. Counsel for defendants has argued that PW­1 has denied that the legal notice Ex. PW­1/4 was not sent on the instructions of the plaintiff and, therefore, legal notice Ex. PW­1/4 issued by Sh. Rohit Kumar, Advocate is without instruction of the plaintiff and cannot be said to be a valid legal notice as prescribed U/s 106 of Transfer of Property Act and for this reason suit is liable to be dismissed.

CS No. 484/11 Page 17 of 28

35. First of all, I shall deal with the question whether the defendants have not been served with the legal notice Ex. PW­1/4 as argued by Ld. Counsel for defendants.

36. In the written statement, it has been denied by the defendants that any legal notice was served upon them. On the other hand, PW­1 has stated in his evidence that the tenancy of the defendants was terminated vide legal notice dated 26.05.2010 Ex. PW­1/4 sent through Sh. Rohit Kumar, Advocate. He further stated that the notice was sent by UPC vide receipt Ex. PW­1/5 and by way of Registered AD Post vide postal receipts Ex. PW­1/6 to Ex. PW­1/8 and was duly served on the defendants and AD cards are Ex. PW­1/9 to Ex. PW­1/10, but despite service the defendants failed to hand over the peaceful vacant possession of the suit premises.

37. In the cross­examination of PW­1, not a single suggestion has been given to him that the defendants were not served with the legal notice Ex. PW­1/4 or that AD cards Ex. PW­1/9 & Ex. PW­1/10 are forged and fabricated and do not bear the signatures of defendants. Per contra, there is no evidence on behalf of the defendants that they were not served with the legal notice. Hence, there is no merit in the contention of the defendants that they were not served with the legal CS No. 484/11 Page 18 of 28 notice Ex. PW­1/4 and it is held that defendants were served with the legal notice Ex. PW­1/4.

38. So far the contention of Ld. Counsel for defendants that the legal notice Ex. PW­1/4 was not sent on the instructions of the plaintiff and in the absence of any instructions from the plaintiff who is owner/landlady of the suit premises, the tenancy of the defendant cannot be terminated vide legal notice Ex. PW­1/4 is concerned, in my considered opinion this contention of the Ld. Counsel for defendants does not hold much water. As discussed earlier, this contention of the Ld. Counsel for defendants is based on the suggestion put to PW­1 where PW­1 has denied that the instructions to send the notice was given by his daughter and not by him. However, this suggestion given by the Ld. Counsel for defendants itself shows that defendants do not dispute the fact that the instructions to send the notice was given by the plaintiff.

39. Moreover, the plaintiff has executed Power of Attorney Ex. PW­1/1 in favour of her father Sh. S.D. Prasad on 11.02.2010 whereby she has authorized her father Sh. S.D. Prasad to institute proceedings, cases in any court of law, appeals, suits, Civil and Criminal, execution proceedings, incidental to the proceedings, to sign on her behalf in all such proceedings, to file/withdraw applications as CS No. 484/11 Page 19 of 28 required in said proceedings, in general and against the occupants/tenants in the property.

40. As such, by virtue of General Power of Attorney Ex. PW­1/1, PW­1 Sh. S.D. Prasad who is father of the plaintiff has all instructions and authority on behalf of the plaintiff to terminate the tenancy of the defendants by sending the legal notice. It has also been stated by PW­1 in his evidence that on the failure of the defendants to hand over possession, the plaintiff terminated the tenancy vide notice dated 26.05.2010 sent through Sh. Rohit Kumar, Advocate. There is no cross­examination of PW­1 on these averments. Not a single suggestion has been given to PW­1 that Sh. Rohit Kumar, Advocate was not authorized to issue notice on behalf of the plaintiff or notice issued by Sh. Rohit Kumar, Advocate was without any authority of the plaintiff. Therefore, not much can be read from the suggestion put to PW­1 where he denied that instructions to give the notice was given by his daughter and not by him. From this suggestion put to PW­1, it cannot be said that the plaintiff has not been able to prove that tenancy of the defendants was terminated vide legal notice Ex. PW­1/4.

41. There is another aspect of the matter. The plaintiff has averred in the plaint that she vide her E­mail dated 15.02.2010 called CS No. 484/11 Page 20 of 28 upon the defendants to vacate the flat by 15.04.2010 as the defendants in the year 2009 had agreed to vacate the flat, but they sought time since the flat purchased by them was not ready. In the written statement, the defendants have not specifically denied the notice sent by the plaintiff through email dated 15.02.2010 calling upon them to vacate the flat by 15.04.2010 and they have vaguely denied the same. In the absence of any specific denial of receipt of notice dated 15.02.2010 sent by the plaintiff through Email, it is proved that plaintiff vide her Email dated 15.02.2010 called upon the defendants to vacate the flat by 15.04.2010.

42. Even otherwise, if the contention of the Ld. Counsel for defendants is accepted that notice Ex. PW­1/4 was sent without any instructions of the plaintiff, still it cannot be said that present suit is liable to be dismissed on account of non­fulfillment of requirement of provisions U/s 106 of Transfer of Property Act. It has been held by the Honb'ble Supreme Court of India in Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) AIR 2008 SC 673 that, "Filing of an eviction suit under the general law is itself a notice to quit on the tenant."

43. Though, in support of his contention the Ld. Counsel for defendants has relied upon the authority titled as Committee of Management, Navli Inter College, Navli Vs. Raj Narain Singh & Ors CS No. 484/11 Page 21 of 28 2000 2 AWC1150. I have gone through the said authority. The facts in the said authority were entirely different. The said authority did not deal with the requirement of notice in accordance with Section 106 of the Transfer of Property Act and in different context it was held that notice without authority is void ab initio.

44. Another authority relied upon by the Ld. Counsel for defendants is Dhanapal Chettiar Vs. Yesodai Ammal AIR 1979 SC 1745. Again this authority is not applicable in the facts and circumstances of the present case. In the said authority the question was as to whether in order to get a decree or order for eviction against a tenant under any State Rent Control Act it is necessary to give a notice under Section 106 of the Transfer of Property Act.

45. In view of aforesaid discussions, it is established on record that defendant no. 1 is the tenant in the suit premises and the plaintiff has terminated the tenancy of the defendants vide legal notice Ex. PW­1/4 and called upon the defendants to hand over the peaceful possession of the suit premises within 15 days after the receipt of the notice. It is also proved on record that the defendants were served with the legal notice Ex. PW­1/4. Admittedly, the defendants have neither replied the notice nor handed over the peaceful possession of the suit CS No. 484/11 Page 22 of 28 premises to the plaintiff as demanded vide legal notice Ex. PW­1/4. Therefore, the plaintiff is entitled for decree of possession of the suit premises. Hence, this issue is decided in favour of the plaintiff and against the defendants.

Issue No. 3

46. The onus to prove this issue was on the plaintiff. The plaintiff has claimed that despite service of legal notice Ex. PW­1/4 by which tenancy of the defendants has been terminated and they were asked to hand over the possession by 16.06.2010, the defendants did not vacate the suit premises. Hence, she is entitled for mesne profits/damages @ Rs. 2,000/­ per day for unauthorized occupation after 16.06.2010.

47. As I have held under Issue No. 2 that defendants were served with the legal notice Ex. PW­1/4, they were required to hand over the vacant and peaceful possession of the suit premises to the plaintiff by 16.06.2010 as demanded vide legal notice Ex. PW­1/4. But the defendants have failed to hand over the possession of the suit premises to the plaintiff by 16.06.2010, hence, the plaintiff is entitled to mesne profits/damages from 16.06.2010. But, the question arises regarding the quantum of mesne profits/damages. The plaintiff has claimed the mesne CS No. 484/11 Page 23 of 28 profits/damages @ Rs. 2000/­ p.m. i.e. Rs. 60,000/­ per month. In this regard, PW­1 stated in his evidence that similar properties in the locality are fetching rentals in the range of Rs. 60,000/­ to Rs. 70,000/­ per month. He further stated that in the notice dated 26.05.2010, the defendants had been informed that in case they failed to hand over possession, they shall be liable to pay a sum of Rs. 2000/­ per day after 16.06.2010. He further stated that plaintiff is entitled to mesne profits/damages minimum @ Rs. 2000/­ per day from 16.06.2010.

48. In the cross­examination, PW­1 stated that he has mentioned in his affidavit that the rate of rent presently in the locality is Rs. 60,000/­ to Rs. 70,000/­ and the said fact is on account of the knowledge acquired by him as a friend of him has let out his similar property in the same locality. He further stated that no document has been filed by him regarding the above said fact.

49. From this statement of PW­1, it appears that claim of plaintiff of mesne profits/damages @ Rs. 2,000/­ per day is based on the knowledge gained by PW­1 from his friend that similar properties in the locality are fetching rentals in the range of Rs. 60,000/­ to Rs. 70,000/­ p.m. Though, PW­1 has claimed that his friend has let out his similar property in the same locality at the said rate, but he has not placed on CS No. 484/11 Page 24 of 28 record any lease deed to show that his friend has let out his similar property in the same locality at the rate of Rs. 60,000/­ to Rs. 70,000/­ per month. The plaintiff has also not examined any other witness to prove that properties in the locality are fetching rentals in the range of Rs. 60,000/­ to Rs. 70,000/­ per month. If the friend of PW­1 has let out his similar property in the range of Rs. 60,000/­ to Rs. 70,000/­ per month as claimed by PW­1 in his cross­examination, the plaintiff could have proved the said fact by examining the said friend of PW­1 or by producing the lease deed on record. But, the plaintiff has not done so.

50. In the absence of any clinching evidence, it cannot be said that plaintiff has successfully proved that similar properties are fetching rentals in the range of Rs. 60,000/­ to Rs. 70,000/­ per month. Therefore, claim of plaintiff of mesne profits/damages @ Rs. 2000/­ per day appears to be on very high side and the plaintiff cannot be awarded the mesne profits/damages @ Rs. 2000/­ per day in the absence of any clinching evidence.

51. In the totality of the facts and circumstances of the case, it would meet ends of justice if the plaintiff is awarded damages @ Rs. 12000/­ p.m. which is presently the rate of rent of the suit premises for unauthorized use and occupation of the suit premises. CS No. 484/11 Page 25 of 28 Therefore, the defendant no. 1 is liable to pay the damages @ Rs. 12,000/­ p.m. from 16.06.2010 till the defendants actually vacate and hand over the physical possession of the suit premises to the plaintiff. However, plaintiff is required to pay the court fees on the damages/mesne profits @ Rs. 12,000/­ p.m. from 16.06.2010 till the date of order.

Issue No. 4

52. The onus to prove this issue was on the plaintiff. The plaintiff has claimed that she apprehends that the defendants, specially keeping in view the conduct in the past one year, on having failed to extract money from the plaintiff, in retaliation and to cause harm to the plaintiff, damage the flat or create third party interest and hand over the possession of the flat or part thereof to a third person. Therefore, the plaintiff has prayed for passing a decree of injunction in her favour and against the defendants thereby restraining the defendants from creating any third party interest in the suit premises and from carrying out any structural changes in the suit property.

53. In the written statement, the defendants have denied the aforesaid claim of the plaintiff and it is contended that there is no apprehension that the defendants would cause harm to the plaintiff or CS No. 484/11 Page 26 of 28 damage the flat or cause third party interest or hand over the possession of the flat or part thereof to the third person and the plaintiff is making false allegations.

54. Plaintiff examined her attorney as PW­1 who in his examination­in­chief has reiterated the aforesaid averments made in the plaint. There is no cross­examination of PW­1 on these averments and this part of his testimony has gone un­rebutted.

55. Even otherwise, admittedly, the plaintiff is the owner of the suit premises. It has also been proved on record that the defendant no. 1 is the tenant in the suit premises under the plaintiff. It is also established on record that plaintiff is entitled for decree of possession in respect of the suit premises. Therefore, the defendants cannot create any third party interest in the suit premises nor the defendants can be allowed to make any structural changes in the suit premises. Hence, this issue is decided in favour of the plaintiff and against the defendants.

RELIEF

56. As a sequel to my findings under Issue No. 2 to 4, the suit of the plaintiff is decreed. A decree of possession is passed in favour of the plaintiff and against the defendants in respect of suit premises i.e. Flat bearing No. 3, Pocket­D, Narmada Apartments, Alaknanda, New CS No. 484/11 Page 27 of 28 Delhi as shown in site plan Ex. PW­1/3. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendants by which the defendants are restrained from creating any third party interest in the suit premises and from carrying out any structural changes in the suit premises. The defendant no. 1 is also liable to pay the damages/mesne profits @ Rs. 12,000/­ p.m. w.e.f. 16.06.2010 till they vacate the suit premises. The plaintiff is also directed to pay the court fee on the mesne profits awarded to the plaintiff w.e.f. 16.06.2010 to the date of order. The plaintiff is also awarded with cost of the suit. Subject to filing the court fee by the plaintiff on mesne profits, decree sheet be prepared accordingly.

File be consigned to Record Room. 

Announced in Open Court                                                                       (Balwant Rai Bansal)
on 28th January, 2013                                                      Additional Senior Civil Judge (South) 
                                                                                           Saket Courts, New Delhi




CS No. 484/11                                                                                                                                 Page 28 of  28
 CS No. 484/11

28.01.2013
                 Present:            None.

Vide my separate judgment of even date dictated and announced in the open court, the suit filed by the plaintiff is decreed. Subject to filing of court fee on mesne profits awarded to the plaintiff, decree sheet be prepared.

File be consigned to Record Room.

(Balwant Rai Bansal) JSCC/ASCJ(South) Saket Courts, New Delhi 28.01.2013 CS No. 484/11 Page 29 of 28