Delhi District Court
Shri Rajinder Kumar vs Yog Raj Dang on 28 March, 2014
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGE II(N/W): ROHINI: DELHI
CS NO. 239/11
Unique Code No. 02404CO228202011
Shri Rajinder Kumar
S/o Shri Shiv Parshad
R/o A3/1, Rana Pratap Bagh,
Delhi. ....Plaintiff
VERSUS
Yog Raj Dang
S/o Sh. B. Dang
R/o A3/1, First Floor,
Rana Pratap Bagh, Delhi.
Delhi85 ....Defendant
Date of Institution : 25.08.2011
Date on which the case was reserved for order : 18.03.2014
Date of Decision : 28.03.2014
J U D G M E N T
1. By this order/judgment, I shall decide the suit for possession, recovery of rent, mense profit/damages & permanent injunction filed by the plaintiff against the defendant.
2. Briefly stated facts in the plaint are that plaintiff is the owner of property bearing No. A3/1, Rana Pratap Bagh, Delhi and a rent agreement of built up first floor of part of the above said property CS No. 239/11 Page No. 1/26 Rajinder Kumar Vs. Yog Raj consisting of four rooms, one store, one kitchen, two toilet & bathrooms situated at A3/1, Rana Pratap Bagh, Delhi110007 ( hereinafter referred to as suit property) as per site plan Annexure P 1 was executed on 24.08.2002 between the plaintiff & defendant's wife Smt. Mala Dang against a monthly rent of Rs. 4,500/ and lease was executed for a period of 22 months, expired on 30.06.2004 and the rent agreement is Annexure P2. It has been further stated that after the expiry of lease period and death of defendant's wife on 07.06.2010, defendant did not vacate and have been living in the suit premises as an unauthorized occupant and the legal notice dated 12.05.2011 to terminate the tenancy was served upon the defendant vide Annexure P3.
3. It has been further stated that tenanted premises can fetch Rs. 30,000/ p.m. as per market rate and there is an arrears of rent of Rs. 4,20,000/ along with interest @18% p.a and prayed that decree of possession be passed in favour of the plaintiff and against the defendant directing him to handover the vacant & peaceful possession of suit premises and decree towards the arrears of rent for a sum of Rs. 4,20,000/ along with interest @ 18% p.a. and litigation charges/cost be also passed in favour of the plaintiff and against the defendant.
4. Summons of the suit was issued to the defendant, who has CS No. 239/11 Page No. 2/26 Rajinder Kumar Vs. Yog Raj contested the suit by filing WS and submitted that suit is based on false averments by concealing the true facts as no cause of action arose in favour of the plaintiff and suit has not been properly valued for the purpose of court fees & jurisdiction and is liable to be dismissed.
5. It has been further submitted that Rent Agreement was executed between the plaintiff & defendant's wife Smt.Mala Dang in the year 2002 against a monthly rent of Rs. 4,500/ in respect of the suit premises and a big security amount (pagree) was also paid to the plaintiff by the defendant's wife at the time of execution of said RentAgreement against receipt but he is not in the possession of any receipt of rent or security amount as his wife used to keep all the papers of rented accommodation in her possession, who had died in the year 2010.
6. It has been further submitted that after the expiry of first rent agreement dated 24.08.2002, no further written rent agreement of any kind was executed between the parties and as per oral agreement, wife of the defendant used to give rent to the plaintiff against receipts till her death and there was no dispute of any kind whatsoever in respect of the said tenancy.
7. It has been denied that after the death of the defendant's wife his possession in respect of the tenanted premises is illegal & CS No. 239/11 Page No. 3/26 Rajinder Kumar Vs. Yog Raj unauthorized as they have been residing in the suit property/rented accommodation as a legal tenant of the plaintiff. It has been further submitted that the legal notice dated 12.05.2011 was not served upon him to vacate the suit premises and the plaintiff is not entitle for a decree of possession, permanent injunction or for the recovery of arrears of rent of Rs. 4,20,000/along with interest as the suit is not maintainable and liable to be dismissed with cost.
8. From the pleadings of parties, vide order dated 21.10.2011, ld predecessor has framed the following issues:
1. Whether the plaintiff is entitled for decree for possession in respect of suit property as prayed for ?OPP
2. Whether the plaintiff is entitled for decree for Rs. 4,20,000/ as arrears of rent along with interest @ 18% p.a. as prayed for ? OPP
3. Whether the plaintiff is entitled for a decree of Rs. 20,000/ as litigation charges ? OPP.
4. Whether the suit is not maintainable ? OPD
5. Whether there is no cause of action in favour of the plaintiff ? OPD.
6. Whether there is any advance amount was given by the plaintiff to the defendant at the time of creation of tenancy between the parties ? OPD
7. Relief, if any.
The issue no6 was reframed on the request of the parties on 18.03.2014, as there was some typographical error and should be read as follows:
Issue no6 Whether there is any advance amount was given by the wife CS No. 239/11 Page No. 4/26 Rajinder Kumar Vs. Yog Raj of the defendant to the plaintiff at the time of creation of tenancy between the parties ? OPD
9. In order to prove its case, plaintiff has examined himself as PW1. On the other hand, defendant has also examined himself as DW1. Detailed testimonies of the witnesses shall be discussed in the later part of the judgment.
10. I have heard the arguments on behalf of the parties and after considering the evidence brought on record. My issuewise findings are as follows: ISSUE NO.1 Whether the plaintiff is entitled for decree for possession in respect of suit property as prayed for ?OPP
11. The onus to prove this issue was upon the plaintiff, who has examined himself as PW1 and deposed on the lines of pleadings that he is the owner of suit premises, which was let out to the wife of defendant's at a monthly rent of Rs. 4,500/ and the site plan is exhibited as Ex PW1/A and the rent agreement dt. 24.08.2002 was executed for a period of 22 months, expired on 30.06.2004 and the rent agreement is exhibited as Ex PW1/B.
12. PW1 has further deposed that after the death of defendant's wife on 07.06.2010, the defendant and others are living in the suit property as unauthorized occupants and the legal notice dated 12.05.2011, which is EXPW1/D was served upon the CS No. 239/11 Page No. 5/26 Rajinder Kumar Vs. Yog Raj defendant before filing the present suit and he is in unauthorized use & occupation of the suit premises.
13. Let us see the relevant part of cross examination of PW1, wherein, it has been stated in his deposition that he used to issue rent receipt against receiving the rent from Smt. Mala Dang, wife of the defendant and there was no dispute between him & Smt. Mala Dang in any manner whatsoever in respect of tenancy till her death in June, 2010. It is further stated in the crossexamination that after the death of Smt. Mala Dang, the defendant used to send the DD against the monthly rent and subsequently a meeting was held between the parties for increasing the rent to Rs. 7,200/ p.m. and for executing the rent agreement in the year 2011, the draft of rent agreement is Ex. PW1/D1 as parties have gone to the office of Sub Registrar, However, plaintiff has changed his mind and came back without executing the rent agreement and no further agreement was executed at any point time.
14. On the other hand, defendant has examined himself as DW1 and deposed that he is residing in the suit property along with his family members since 2002, as a tenant of the plaintiff and Rent Agreement was executed between the plaintiff and his wife namely Smt. Mala Dang in the year, 2002 which is already exhibited as Ex.
PW1/B and the monthly rent of the suit premises was fixed @ Rs. CS No. 239/11 Page No. 6/26 Rajinder Kumar Vs. Yog Raj 4500/ and a security amount (pagri) was also paid to the plaintiff by his wife at the time of execution of the said rent agreement.
15. DW1 has further deposed that his wife used to give rent of the suit property to the plaintiff against the receipt and at the time of her death, the rent of the suit premises was Rs. 6,500/p.m. and there was no dispute between the parties in respect of the tenancy. DW1 has further deposed that in the year, 2011 before filing the present suit, a meeting was held between the parties and it was settled that rent of the suit property will be Rs. 7,200/ p.m. and the rent agreement was to be executed before the Sub Registrar, but subsequently the plaintiff has changed his mind and no fresh rent agreement was executed. DW1 has further deposed that he is always ready to pay rent to the plaintiff in respect of the suit property at the increased rate of Rs. 7,200/ p.m. as per settlement but the plaintiff is adamant to evict the defendant from the suit property and the present suit was filed.
16. Let us see the relevant part of cross examination of DW1, wherein it is stated that he was not present at the time of execution of the rent agreement Ex. PW1/B and he does not know the amount of pagri given by his wife. DW1 has denied the suggestion that he has no right to remain in the occupation of suit premises after the death of his wife. DW1 has further stated in his crossexamination CS No. 239/11 Page No. 7/26 Rajinder Kumar Vs. Yog Raj that the address mentioned in notice, Ex.PW1/D is correct.
17. It is a well settled principle of law that in a suit for possession against the tenant in respect of the tenanted premises. Plaintiff is required to prove three ingredients : (1) Existence of relationship of landlord & tenant. (2) Valid termination of tenancy either by efflux of time or by service of notice to quit u/s 106 of Transfer of Property Act, 1882 and failure to vacate the demise premises despite termination of tenancy. .
(3) Rent of the suit premises is more than Rs. 3,500/ per month and outside the purview of Delhi Rent Control Act.
18. Section 106 of T.P. Act, to the extent, it is relevant, provides that in the absence of a contract or a local law or usage to the contrary, a lease of immovable property for any purpose other than agriculture or manufacturing purpose can be terminated by giving 15 days notice expiring with a month of tenancy.
19. Reference can also be made to the judgment titled as Sudershan Sinha & Anr. Vs. Kuldeep Singh reported as 2006 VIII AD ( Delhi) 75, wherein it has been held that "it is now only relevant that the suit should be filed after the expiry of the period of fifteen days from the date of the receipt of the notice ".
20. In the instant matter, the case of the plaintiff is that suit premises was given on monthly rent of Rs.4,500/ by executing a rent agreement dt. 24.08.2002, ExPW1/B and the tenancy was for CS No. 239/11 Page No. 8/26 Rajinder Kumar Vs. Yog Raj the period of 22 months expired on 30.06.2004 and defendant became an unauthorized occupant after the expiry of tenancy by efflux of time and has no legal right to remain in the possession/occupation of the tenanted premises.
21. On the other hand, the defence as set up by the defendant is that he is residing in the suit property along with his family members since 2002, as a tenant on the basis of Rent Agreement Ex. PW1/B executed between the plaintiff and his wife namely Smt. Mala Dang in the year, 2002. Defendant has taken a stand that at the time of death of his wife, the rent of the suit premises was Rs. 6,500/ p.m. and there was no dispute between the parties in respect of the tenancy after the death of his wife.
22. Defendant has also taken another stand that in the year, 2011 before filing the present suit, a meeting was held between the parties and it was settled that rent of the suit premises will be Rs. 7,200/ p.m., however, no fresh rent agreement was executed and he is always ready to pay rent to the plaintiff at the increased rate of Rs. 7,200/ p.m. as per settlement.
23. On perusal of the evidence, it is worthwhile to mention here that it is an undisputed fact that no fresh rent agreement was executed between the parties after the expiry of tenancy by efflux of time on 30.06.2004 and the tenancy remained oral. Accordingly, the CS No. 239/11 Page No. 9/26 Rajinder Kumar Vs. Yog Raj argument on behalf of the defendant in the absence of any cogent evidence to substantiate his defence that there was an understanding that rent agreement will be executed and is entitled to continue in the tenanted premises is solely by virtue of alleged oral understanding without there existing a registered rent agreement for which an option is sought to have been exercised is clearly misconceived and cannot be accepted. The incidental argument on behalf of defendant that parties have acted on the basis of alleged oral understanding will not take the defendant any further, because even in such circumstances, that in the absence of any written rent agreement with regard to the tenancy, the tenancy continues as a month to month tenancy and such monthly tenancy can always be terminated by giving a notice.
24. In the case titled as M/s Jeevan Diesels & Electricals Ltd vs. M/s Jasbir Singh Chaddha (HUF) & Anrs. 2011 (182) DLT 402 , it has been held that the service of the summons in a suit filed by a landlord accompanied by the plaint can always be treated as notice under section 106 of the Transfer of Property Act, 1882.
25. In view of the discussion made above and relying upon the judgment M/s Jeevan Diesels & Electricals Ltd vs. M/s Jasbir Singh Chaddha (HUF) & Anrs.(supra), it can be concluded that after the termination of tenancy vide notice dated 12.05.2011, Ex. PW1/D, CS No. 239/11 Page No. 10/26 Rajinder Kumar Vs. Yog Raj defendant is in unauthorized occupation of suit/rented premises and is liable to vacate & handover the possession of suit premises to the plaintiff. Accordingly, this issue is decided in favour of the plaintiff and against the defendant holding that plaintiff is entitled to a decree of possession.
ISSUE NO.2 Whether the plaintiff is entitled for decree for Rs. 4,20,000/ as arrears of rent along with interest @ 18% p.a. as prayed for ? OPP.
26. The onus to prove this issue was upon the plaintiff. PW1 has deposed that suit premises was given on rent of Rs. 4,500/p.m. to the wife of defendant w.e.f. 01.09.2002 and lease period of 22 months got expired on 30.06.2004, but the defendant has failed to vacate & handover the possession after the expiry of the lease deed by efflux of time and became an illegal occupant and the rent has not been paid regularly and there is an arrear of rent to be paid by the defendant to the tune of Rs. 4,20,000/ along with interest @ 18% p.a.
27. On the other hand, the defence as set up by the defendant is that there is no arrears of rent as he has been paying the rent regularly @ Rs. 6,500/ p.m. and depositing the monthly rent by way of cheques and the parties have agreed to execute a fresh rent agreement @ Rs. 7,200/p.m. CS No. 239/11 Page No. 11/26 Rajinder Kumar Vs. Yog Raj
28. In the present case, plaintiff has claimed the recovery of arrears of rent to the tune of Rs. 4,20,000/ but has not mentioned the period for which, the arrears of rent has been claimed and how the figure of Rs. 4,20,000/ has been calculated. Admittedly, initial rent of the tenanted premises was Rs. 4,500/ p.m. and the rent was increased to Rs. 6,500/ p.m. and is entitled to recover the arrears of rent at the enhanced rate or lastly paid by the defendant. It is worthwhile to note here that DW1 has admitted in his cross examination that he is ready to pay the rent at the enhanced rate of Rs. 7,200/ p.m.
29. Plaintiff has not brought any cogent evidence or proof in this regard to establish that there is arrears of rent of Rs.4,20,000/ to be recovered from the defendant. On the other hand, even defendant has not brought on record any cogent evidence in this regard to substantiate his defence that rent has been paid upto date and there is no arrears of rent to be recovered from him.
30. It is an undisputed fact that there is no written rent agreement executed between the parties and no rent receipts has been brought on record. Admittedly, the last paid rent is @ Rs. 6,500/ p.m. of the tenanted premises which was given on rent to the wife of the defendant in the year 2002 for a period of 22 months and the tenancy has come to end by efflux of time on 30.06.2004. It is CS No. 239/11 Page No. 12/26 Rajinder Kumar Vs. Yog Raj also undisputed fact that defendant is still in the occupation of the tenanted premises after the death of his wife in June 2010.
31. What is the rent, which the premises can fetch during the period of the illegal occupation by the erstwhile tenant is a fact which can be proved in a suit for possession and mesne profits against the tenant by leading evidence with respect to rent of similar premises within the locality and the Court, on considering such evidence, with respect to rent of similar premises thereafter awards mesne profits to the landlord/landlady.
32. Section 74 of Indian Contract Act boldly cuts the most troublesome knot in common law of doctrine of damage. Whether actual loss or damages is proved or not the court is entitled to award reasonable damages not exceeding the stipulated amount. The Section confers very wide powers on the court and only restriction is that the court can not decree the amount previously agreed upon by the parties. The discretion of the court in the matter of reducing amount of damages agreed upon is left unqualified by any specific limitation, though, of course, the expression "reasonable compensation used in the Section necessarily implies that the discretion so vested must be exercised with care, caution and on sound principles.
33. Considering the facts & circumstances of the matter and CS No. 239/11 Page No. 13/26 Rajinder Kumar Vs. Yog Raj the evidence placed on record, it is an undisputed fact that there is no written rent agreement executed between the parties and the tenancy remained oral.
34. Now the point for discussion here is what should be an amount for use & occupation charges and which factor should be taken into consideration to calculate the rent/mesne profit to be paid by the tenant/defendant for the rented premises. The present issue is concerned with the mesne profit/damages not during the period of tenancy but post the expiry of tenancy period.
35. In these circumstances, considering the last paid rent of the premises was Rs. 6,500/ p.m. and in the absence of any evidence having been led by the plaintiff with respect to the rents prevalent in the area, where the suit premises is situated. Reliance has been placed to the judgment of Hon'ble High Court of Delhi in case titled as "S.Kumar Vs. G.R. Kathpalia 1999 RLR 114" in which, the Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profit at a rate higher than the contractual rate of rent.
36. It is worthwhile to note here that PW1 has stated in the crossexamination that after the death of Smt. Mala Dang, the defendant used to send the DD against the rent monthly and subsequently a meeting was held between the parties for increasing CS No. 239/11 Page No. 14/26 Rajinder Kumar Vs. Yog Raj the rent to Rs. 7,200/ p.m. and for executing the rent agreement in the year 2011, the draft of rent agreement is Ex. PW1/D1 and parties have gone to the office of SubRegistrar but plaintiff has changed his mind and came back without executing the rent agreement.
37. In the instant case, admittedly the last paid rent of the suit premises was @ Rs. 6,500/ p.m. It is worthwhile to note here that defendant has testified in his deposition that before filing the prsent suit, it was settled between the parties that rent of the suit premises will be enhanced to Rs. 7,200/ p.m., but the rent agreement could not be executed as the plaintiff has changed his mind and he is always ready to pay rent at the increased rate of Rs. 7,200/ p.m. to the plaintiff in respect of the suit/rented premises.
38. In view of the discussion made above and evidence brought on record, this court is of the opinion that interest of justice would be met, if a sum of Rs. 7,200/ p.m. is granted to the plaintiff for the use & occupation charges of the tenanted premises by the defendant from the date of filing of the suit till the handing over of the vacant & peaceful possession of the suit premises to the plaintiff.
39. Hence, the plaintiff is entitled to recover an amount towards the arrears of rent @ Rs. 7,200/ p.m. ( for a period w.e.f. 01.09.2011 to 31.03.2014) which comes to Rs. 2,23,200/.
40. Plaintiff is also claiming the interest @ 18% p.a. but has CS No. 239/11 Page No. 15/26 Rajinder Kumar Vs. Yog Raj not brought any document or evidence on record to show that how she is entitled for interest @ 18% p.a. Hon'ble Supreme Court in the recent chain of judgments titled as "Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority & Ors. 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and Others 2006(11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd. (2006) 7 SCC 700, and Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra 2007 (2) SCC 720"
has mandated that courts must reduce the high rate of interest on account of the consistent fall in the rates of interest in the changed economic scenario. Relying upon the above mentioned judgments, it can be said that interest claimed @ 18% p.a. by the plaintiff is on the higher side and in the absence of any evidence cannot be granted.
41. In these circumstances, considering the prevailing rate of interest in the market and economic scenario. I am of the view that justice would be met if the interest @ 9% is granted to the plaintiff. Hence, plaintiff will be thus entitled to interest @ 9% p.a. on the money decree. Accordingly, this issue is partly decided in favour of the plaintiff and against the defendants and a decree for a sum of Rs. 2,23,200/ along with interest @ 9% p.a. is passed in favour of the plaintiff.
ISSUE NO.3 Whether the plaintiff is entitled for a decree of Rs. CS No. 239/11 Page No. 16/26 Rajinder Kumar Vs. Yog Raj 20,000/ as litigation charges ? OPP.
42. Onus to prove this case was upon the plaintiff. PW1 has deposed on the line of pleadings that he is the owner of suit premises, which was let out to the wife of the defendant at a monthly rent of Rs. 4,500/ and a rent agreement is exhibited as Ex PW1/B and after the expiry of lease period, defendant did not vacate the suit premises and continued to occupy the same and registered legal notice dt. 12.05.2011 was served upon the defendant which is exhibited as Ex. PW1/D and the suit for possession and recovery of arrears was filed. Plaintiff has claimed the decree of possession and arrears of rent/mesne profit and has affixed the tentative court fees of Rs. 5,910/ and has also claimed a amount of Rs. 20,000/ towards the litigation charges.
43. On the other hand, stand taken by the defendant is that Rent Agreement was executed between the plaintiff and his wife in the year 2002 at a monthly rent of Rs. 4,500/ and after the death of his wife in June 2010, monthly rent of the suit premises was Rs. 6,500/ and there was no dispute between the parties in respect of the said tenancy. Defendant has taken another stand that in the year 2011, before filing of the present suit , a meeting was held between the parties and it was settled that rent of the suit premises would be Rs. 7,200/ p.m. and rent agreement was to be executed but plaintiff CS No. 239/11 Page No. 17/26 Rajinder Kumar Vs. Yog Raj has changed his mind and as such no cause of action arose in favour of the plaintiff to file the present suit and he is not entitled for any litigation charges.
44. Plaintiff has been able to prove that a notice dt. 12.05.2011 for termination of tenancy Ex. PW1/D was issued and the tenancy was terminated and defendant was called upon to hand over the possession of suit premises and he is still in an unauthorized occupation/possession of the suit/tenanted premises and the present suit is for the recovery of possession and arrears of rent.
45. In view of the discussion made above, the court fees filed on behalf of the plaintiff and in view of the findings given on the above said two issues, which were decided in favour of the plaintiff. This court is of the view that an amount of Rs. 20,000/ towards the litigation charges is a reasonable one and plaintiff is entitled for the same. Hence, the present issue is decided in favour of the plaintiff and against the defendant and a sum of Rs. 20,000/ has been granted towards the litigation charges to the plaintiff. ISSUE NO.4 Whether the suit is not maintainable ? OPD
46. The onus to prove this issue is upon the defendant, who has examined himself as DW1 and deposed that he is residing in the suit property along with other family members as a tenant of the plaintiff as the Rent Agreement was executed between the plaintiff CS No. 239/11 Page No. 18/26 Rajinder Kumar Vs. Yog Raj and his wife namely Smt. Mala Dang in the year 2002 and monthly rent was fixed @ Rs. 4,500/ and after the death of his wife, monthly rent of the suit premises was Rs. 6,500/ and the same was being paid to the plaintiff against the receipts and there was no dispute between the parties in respect of the said tenancy and the suit is not maintainable.
47. On the other hand, plaintiff has examined himself as PW1 and deposed that he is owner of the suit premises, which was let out to the wife of the defendant at a monthly rent of Rs. 4,500/ and a rent agreement for a period of 22 months was executed, which is Ex PW1/B. PW1 has further deposed that after the expiry of lease period on 30.06.2004, defendant did not vacate the suit premises and continued to occupy the same and registered legal notice dt. 12.05.2011 was issued and served upon the defendant which is exhibited as Ex. PW1/D and the present suit for recovery of possession and recovery of arrears was filed.
48. In the present matter, it is an undisputed fact that the premises was let out to the wife of the defendant and defendant is in the possession of the suit premises after the death of his wife in 2010. It is worthwhile to note here that defendant has made only bald averment in the WS that suit is not maintainable.
49. Defendant has not brought any cogent evidence to prove CS No. 239/11 Page No. 19/26 Rajinder Kumar Vs. Yog Raj this issue in his favour and no arguments in this regard has been advanced even at the time of final argument. Pleading is no evidence, far less proof. In view of the discussion made above, it can be said that suit is not maintainable. Accordingly, this issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 5 :Whether there is no cause of action in favour of the plaintiff ? OPD
50. The onus to prove this issue is upon the defendant. DW1 has deposed that Rent Agreement dated 24.08.2002 was executed between the plaintiff & the wife of the defendant for a period of 22 months at a monthly rent of Rs. 4,500/ and lease period expired on 30.06.2004. DW1 has further deposed that his wife died in 2010 and after her death, monthly rent of the suit premises was Rs. 6,500/ and there was no dispute between the parties in respect of the said tenancy and before filing of the present suit, meeting was held between the parties and it was settled that rent of the suit premises would be Rs. 7,200/ per month by executing a rent agreement but plaintiff did not reach the office of the Sub Registrar and changed his mind and as such no cause of action arose in favour of the plaintiff to file the present suit.
51. On the other hand, PW1 has deposed that he is the owner of suit premises, which was let out to the wife of the defendant CS No. 239/11 Page No. 20/26 Rajinder Kumar Vs. Yog Raj and the rent agreement is exhibited as Ex. PW1/B and after the expiry of lease period, defendant did not vacate the suit premises and continued to occupy the same and registered legal notice dt. 12.05.2011 was served upon the defendant which is exhibited as Ex. PW1/D and the suit for possession and recovery of arrears was filed as the cause of action to file the present suit arose when the tenancy has come to end by efflux of time on 30.06.2204 and again on 12.05.2011, when the legal notice to terminate the tenancy was served and called upon to handover the vacant & peaceful possession of the suit premises and has failed to vacate the suit premises and is still continuing and the present suit was filed.
52. It is an undisputed fact that the premises was let out to the wife of the defendant and after the death of his wife in 2010, he is in the possession of the suit premises and has been paying rent @ Rs. 6,500/ p.m and there was no written rent agreement was executed after the expiry of the the first rent agreement on 30.06.2004.
53. It is a well settled principle of law that while determining as to what would constitute the cause of action, the Hon'ble Supreme Court in the case titled as Om Prakash Shrivastava Vs. Union of India 2006 (6) SCC 207 has observed in paras 12 and 13 and relevant portion has been reproduced as under : CS No. 239/11 Page No. 21/26
Rajinder Kumar Vs. Yog Raj "12. The expression 'cause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all these essential facts without the proof of which the plaintiff must fail in his suit.
13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain as action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing : a factual situation that entitles one person to obtain a remedy in court from another person."
54. In view of the averments in the plaint, discussion made above and relying upon the judgment tilled as Om Prakash Shrivastava Vs. Union of India (supra), I am of the view that plaintiff has been able to prove that suit premises was let out to the wife of the defendant and the tenancy got expired by efflux of time on 30.06.2004 and legal notice dt. 12.05.2011 was issued, which is Ex PW1/D.
55. On the other hand, defendant has raised an objection in the WS that there is no cause of action arose in favour of the paintiff CS No. 239/11 Page No. 22/26 Rajinder Kumar Vs. Yog Raj to file the present suit. However, no cogent evidence has been brought on record to prove this issue in favour of the defendant. Pleading is no evidence, far less proof. Hence, it can not be said that there is no cause of action arose in favour of the plaintiff to file the present suit. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 6 : Whether there is any advance amount was given by the wife of the defendant to the plaintiff at the time of creation of tenancy between the parties ? OPD
56. The onus to prove this issue is upon the defendant, who has examined himself as DW1 and deposed on the line of pleadings that he is residing in the suit property along with his family members since 2002 as a tenant of the plaintiff and Rent Agreement was executed between the plaintiff and his wife namely Smt. Mala Dang in the year, 2002 which is exhibited as Ex. PW1/B and the monthly rent of the suit premises was fixed @ Rs. 4500/ and a big security amount (pagri) was also paid to the plaintiff by his wife at the time of execution of the said rent agreement against receipt and his wife used to keep all the papers of the rented accommodation in her possession, who died in the month of June, 2010 and he is not in the possession of any documents.
57. On the other hand, case of the plaintiff is that he is the CS No. 239/11 Page No. 23/26 Rajinder Kumar Vs. Yog Raj owner of suit premises, which was let out to the wife of defendant's at a monthly rent of Rs. 4,500/ and the rent agreement dt. 24.08.2002 was executed for a period of 22 months and the tenancy period has expired by efflux of time on 30.06.2004 and the rent agreement is exhibited as Ex PW1/B.
58. In the instant case, it is an undisputed fact that Rent Agreement dt.24.08.2002 was executed between the plaintiff and the wife of the defendant, which is EX PW1/B and after that no fresh rent agreement was executed between the parties and the tenancy remained oral. Defendant has not even mentioned the exact advance amount paid by his wife to the plaintiff at the time of creation of the tenancy. Defendant has made only bald averment in the WS that security amount was paid by his wife to the plaintiff. It is worthwhile to note here that defendant has admitted in his cross examination that he was not present at the time of execution of the rent agreement EXPW1/B. DW1 has denied the suggestion given by the counsel for the plaintiff that no "pagdi" was given by his wife to the plaintiff and for this reason this fact was not mentioned in the rent agreement. It is worthwhile to note here that on perusal of the rent agreement Ex. PW1/B is running into 45 pages and contained various terms & conditions agreed between the parties at the time of execution of the rent agreement between them but nothing has been CS No. 239/11 Page No. 24/26 Rajinder Kumar Vs. Yog Raj mentioned in the said agreement with regard to the alleged security amount paid by wife of the defendant to the plaintiff. No cogent evidence has been brought on record to establish that any security amount was given by the wife of defendant to the plaintiff. Pleading is no evidence, far less proof.
59. Hence, it can be concluded that defendant has failed to prove that any advance amount was given by his wife to the plaintiff at the time of creation of tenancy between the parties. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
RELIEF:
60. The initial onus to prove its case is always on the plaintiff and if it discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same.
(i) In view of the finding given on the issues and especially on the issue no.1 which has been decided in favor of the plaintiff, a decree for possession of suit premises i.e. property bearing no. A3/1, Area 331 Sq. Yards, Rana Pratap Bagh, Delhi on first floor consisting of four rooms, one store, one kitchen, two toilets and bathroom as per site plan is passed in favour of the plaintiff with a direction to the defendant to handover the vacant & peaceful possession of above said rented premises to the plaintiff within two months from the CS No. 239/11 Page No. 25/26 Rajinder Kumar Vs. Yog Raj date of decree.
(ii) And in view of the findings given on the issues no.2 which has been partly decided in favour of the plaintiff and against the defendant, a money decree is passed towards the arrears of rent of Rs. 2,23,200/ along with interest @ 9% p.a. from the date of filing of the suit till the realization of a decreetal amount alongwith Rs.20,000/ towards the litigation charges in view of issue no. 3 decided in favour of the plaintiff. However, plaintiff is hereby directed to file the appropriate court fees towards the money decree in accordance with law and the decree sheet be prepared only after taking the court fees on record. It is clarified that in case, any amount has already been paid for the aforesaid period by the defendant to the plaintiff, the defendant will be entitled on proof if any to be adjusted qua the money decree passed.
61. With the above said observations, the suit is hereby decreed and stands disposed of accordingly. Decree sheet be prepared after filing the requisite court fees on behalf of the plaintiff. After compliance, file be consigned to record room.
Announced in the Open Court (SUNIL RANA) today i.e. 28.03.2014. ADJII(N/W): ROHINI : DELHI CS No. 239/11 Page No. 26/26 Rajinder Kumar Vs. Yog Raj