Delhi District Court
Sh. Rajiv Tomar vs Sh. Anil Khurana on 31 March, 2014
IN THE COURT OF SHRI M. P. SINGH, SENIOR CIVIL JUDGE, RENT
CONTROLLER, (EAST), KARKARDOOMA COURTS, DELHI
Suit no. 30/11
Unique Case ID No. 02402C0026792011
1. Sh. Rajiv Tomar
S/o Late Jagbir Singh
R/o House no. 383C/1,
East Azad Nagar, Delhi
2. Sh. Rajesh Tomar
S/o Late Jagbir Singh
R/o House no. 383C/1,
East Azad Nagar, Delhi ........... Plaintiffs
Versus
Sh. Anil Khurana
S/o Sh. N. K. Khurana
R/o House No. 383C/1
East Azad Nagar, Delhi
Also at:
D13/1516, Sector - 7
Rohini, Delhi ......... Defendant
SUIT FOR POSSESSION, MESNE
PROFITS AND RECOVERY OF
ARREARS OF RENT
Case filed on 24.01.2011
Arguments heard on 15.03.2014
Date of decision 31.03.2014
CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 1 of 31
JUDGMENT
1. Plaintiffs' case is as follows: Plaintiffs, joint owners of property bearing no. 383C/1, East Azad Nagar, Delhi, have filed the instant suit through their mother/attorney Smt. Rama Devi. Defendant is a tenant in respect of one showroom measuring 30'x20', one workshop and an office measuring 10'x 8' behind the showroom. It is averred that plaintiffs, through their father late Jagbir Singh, used to receive total monthly rent of Rs. 3,300/ from the defendant. Defendant was, however, irregular in payment of the rental and did not pay any rent since August, 2005. A notice dt. 18.03.2010 was served upon him demanding arrears of rent with effect from August, 2005 and for enhancement of the monthly rental by 10% to Rs. 3,630/.
2. Defendant responded to the aforesaid notice vide his reply dt. 12.05.2010 asserting therein that the demised premises consisted of three separate tenancies and that rental up to January, 2010 had been paid to Jagbir Singh, plaintiffs' father, who passed away in February, 2010. Defendant vide his aforesaid reply, it is stated, accepted the enhancement of rent, however, he put the rider that the enhancement would be for three separate tenancies. Defendant in his reply also stated that he had paid Rs. 1,00,000/ to plaintiffs' late father as part sale consideration of the suit property. Along with the aforesaid reply defendant tendered three different cheques alleging the same to be rent for the period from January, 2010 to April, 2010 qua three separate portions.
CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 2 of 31
3. Plaintiffs allege that defendant's aforesaid reply is a false one. As per the plaintiffs there existed only one tenancy at monthly rent of Rs. 3,300/. It is further alleged that the defendant, in order to avail protection of Delhi Rent Control Act (for short 'DRC Act'), deliberately bifurcated the rent alleging the same to be three tenancies. Plaintiffs rebutted defendant's contentions, as set out in his aforesaid reply dt. 12.05.2010, through their communication dt. 23.06.2010 and the three cheques were returned.
4. It is alleged that the defendant failed to make payment of arrears of rent from August, 2005 to 30th April, 2010 @ Rs. 3,300/ per month and further failed to make the payment of enhanced rent @ Rs. 3,600/ per month with effect from 01.05.2010.
5. Vide notice dt. 09.11.2010 plaintiffs terminated defendant's tenancy with effect from 31.12.2010. Despite service of this notice, defendant did not vacate the premises. He, however, sent a reply dt. 22.12.2010 through his counsel reasserting his earlier stand and demanded return of Rs. 1,00,000/ from the plaintiffs which he had allegedly paid to their father in June, 2009 as earnest money for purchase of the premises. With the reply, defendant sent three cheques alleging the same to be rent for the period from July, 2010 to December, 2010. Defendant further stated in his reply that he had deposited the rentals under section 27, DRC Act. It is pertinent to mention that plaintiffs had earlier instituted a suit for recovery of arrears of rent against the defendant which stood decreed. On these averments the present suit has CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 3 of 31 been filed seeking the following reliefs:
(a) A decree of possession in plaintiffs' favour and against the defendant in respect of suit premises i.e. one showroom measuring 30'x20', one workshop and office behind the showroom measuring 10'x8' out of builtup property bearing no. 383C/1, East Azad Nagar, Delhi.
(b) A decree for a sum of Rs. 1,21,770/ in plaintiffs' favour and against the defendant on the account of arrears of rent together with interest @ 12% per annum from the date of filing of the same till its realization.
(c) A decree for pendente lite and future mesne profits @ Rs. 20,000/ per month or at such higher rate as may be prevalent at the relevant time.
6. Defendant filed his written statement on 30.03.2011. At the very outset he asserts that the suit is barred by section 50, DRC Act inasmuch as there are three separate tenancies for three portions in the property created at three different points of time and each of them fetch monthly rental of less than Rs. 3,500/. Plaintiffs' grandfather Sh. Pheru Singh is stated to have created three separate tenancies. Details of the three tenancies, as per the defendant, are as follows:
(a) One showroom at monthly rent of Rs. 1500/, enhanced to Rs. 1,650 with effect from 01.05.2010,
(b) A workshop at monthly rent of Rs. 1,200/ enhanced to Rs. 1,320/ with effect from 15.05.2010, and
(c) An office at monthly rent of Rs. 600/ enhanced to Rs. 660/ with effect from 08.05.2010.CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 4 of 31
7. It is averred that rent was deposited in the Court by filing three separate petitions under section 27, DRC Act and they were allowed vide order dt. 18.10.2010 passed by Ld. ARC, East District, Delhi and that rent in respect of the three separate tenancies stand paid up to date and thus the suit is without cause of action. It is also averred that qua the three tenancies three separate cheques were sent with the reply dated 22.12.2010 sent in response to plaintiffs' legal notice dt. 09.11.2010. It is also averred that there was never any agreement for payment of interest on the arrears of rent at the rate of 12% per annum. It is also averred that the plaint is defective for the reason that the same has been signed their mother/attorney and not the plaintiffs. It is stated that plaintiff no. 1 Rajiv Tomar is settled abroad and the plaintiff no. 2 is mentally retarded, which stands admitted in plaintiffs' reply dt. 23.06.2010. It is further averred by defendant that no application under Order XXXII CPC has been moved along with the suit and as such, the suit is not maintainable. It is averred that the SPA in favour of plaintiff's mother is not properly stamped and that she has no authority to sign and verify the same.
8. Defendant does not admit the plaintiffs to be the owners of the property. It is submitted that plaintiffs, through their father Jagbir Singh had filed a suit for recovery in 2004 and in the written statement the defendant had taken the specific stand that three separate tenancies existed, created at three different points of time. It is stated that the plaintiffs have clubbed the three tenancies together in order to take the case out of the purview of DRC CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 5 of 31 Act. It is stated that the present rent of three tenancies is Rs. 1,650/ + Rs. 1,320/ + Rs. 660/ = Rs. 3,630/. It is stated that rent is being paid separately for the three tenancies. The site plan of plaintiffs is stated to be not depicting the true and correct position of the tenanted premises. It is averred that the tenancy of the showroom is effective from 1st day of the month and the rent is Rs. 1,650/ with effect from 01.05.2010; the tenancy of the workshop is effective from 15th day of the month and the rent is Rs. 1,320/ with effect from 01.05.2010; the tenancy of the office is effective from 8th day of the month and the rent is Rs. 660/ with effect from 01.05.2010. Defendant vehemently denies that he is irregular in paying the rental. He states that he has paid the rentals till December, 2009 and for the period thereafter he has deposited the rent under section 27 DRC Act. He submits that the enhancement of the rent was with respect to each of the three separate tenancies. He avers that plaintiff's father had agreed to sell a portion of the property to him and he took Rs. 1,00,000/ as earnest money.
9. Plaintiffs stand accused of concealing the material fact regarding existence of three separate tenancies for three separate portions of property bearing no. 383C/1, East Azad Nagar, Delhi. Denying other averments, defendant seeks dismissal of the suit.
10. Plaintiffs filed their replication reiterating and reaffirming the stand as taken by them in the plaint and denying those made by the defendant in the written statement.
CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 6 of 31
11. The issues, struck on 07.07.2011, are as follows:
1) Whether defendant is tenant in respect of one show room measuring 30x20 ft, one workshop and one office at back of the showroom measuring 10x8 ft. on monthly rent of Rs. 3,630/ w.e.f. 01.05.2010? OPP
2) Whether defendant is in arrear of rent w.e.f. August 2005 to 30.04.2010 at the rate of Rs. 3,300/ per month and rate of rent as Rs. 3,600/ per month w.e.f.
01.05.2010? OPP
3) Whether plaintiff is entitled to interest on the arrears of rent? If so, at what rate and for what period? OPP
4) Whether tenancy of the defendant stand terminated vide notice dated 09.11.2010 as alleged in para 8 of the plaint? OPP
5) Whether plaintiff is entitled to decree for possession in respect of above said one showroom, one workshop and office? OPP
6) Whether plaintiff is entitled to pedente lite and future mesne profit? If so, at what rate and for what period? OPP
7) Whether there exists three separate tenancies for three separate portions of suit property as alleged in para 2 of the preliminary objection of the WS? OPD
8) Whether father of plaintiff Sh. Jagbir Singh - attorney of the plaintiff has agreed to sell portion of property and in consideration thereof defendant paid Rs. 1,00,000/ to Jagbir Singh? If so, its consequences?
9) Relief.
12. Plaintiff no. 1 Rajiv Khurana entered the witness box as PW1. He exhibited the Special Power of Attorney (SPA) in his mother's favour as Ex. PW1/1, the site plan as Ex. PW1/2, the legal notice dt. 18.03.2010 as Ex. CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 7 of 31 PW1/3 and postal receipts/UPC thereof as Ex. PW1/4 and Ex. PW1/5 and defendant's reply dt. 12.05.2010 to it as Ex. PW1/6, plaintiffs' letter dt. 23.06.2010 as Ex. PW1/7 and postal receipts/UPC thereof as Ex. PW1/8 and Ex. PW1/9, the legal notice dt. 09.11.2010 as Ex. PW1/10 and postal receipts/UPC thereof as Ex. PW1/11 and Ex. PW1/12 and the defendant's reply dt. 22.12.2010 Ex. PW1/13. Certified copy of the judgment of the previous suit between the parties is Ex. PW1/D1.
13. Defendant Anil Khurana was examined as DW1. He marked the copies of DR petitions as Mark A, Mark B and Mark C. He also marked the copies of the order dt. 18.10.2010 passed in the three DR petitions as Mark D, Mark E and Mark F. The decree of the previous suit between the parties is Ex. DW1/1. The certified copy of defendant's deposition in the previous suit is Ex. DW1/PX1.
14. I have heard arguments at Bar and perused the record.
15. The issuewise findings are as follows:
16. Issue no. 8 The onus to prove this issue was placed upon the defendant. Except for defendant's self serving ipse dixit on this score, there is no evidence to even remotely show that he had paid rupees one lac to late Jagbir Singh as earnest money for purchase of a portion of the property. There is no document evidencing such a payment. There is neither any bank record to show transfer of such funds. It is not averred in the written statement, much less pleaded, as to on what precise date was such payment CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 8 of 31 made. There are no witnesses to the transaction. No agreement to sell in writing was drawn up. Lastly, it is not clear as to which 'portion' of the property was agreed to be transferred. Furthermore, defendant in his evidence stated that he paid rupees one lac after the commencement of litigation between him and Jagbir Singh. It is difficult to comprehend that a litigating party would transfer such funds to his rival side in the litigation without proper and suitable documentation. And as such, it stands not proved that the defendant had paid rupees one lac to late Jagbir Singh as earnest money for purchase of a portion of the property.
17. That apart, even if this averment about advancement of earnest money of rupees one lac for purchase of a portion of the property be accepted as the gospel truth, yet, legally speaking, it is hardly of any consequence for the present purpose. Entering into an agreement to sell qua portion of the premises would not alter the status of the defendanttenant. The law is well settled that status of a tenant would not alter even if he enters into an agreement to sell qua the tenanted premises; so much so that he cannot avoid his ejectment even if a decree for specific performance stands passed in his favour. The following decisions, in this context, can be fruitfully referred to :
(1) Jiwan Dass Rawal Vs. Narain Das AIR 1981 Delhi 291, (2) Sunil Kapoor Vs. Himmat Singh & Ors., 167 (2010) DLT 806 = MANU/DE/ 0203/2010 (3) Sanjay Singh Vs. M/s Corporate Warranties Pvt. Ltd. 204 (2013) DLT 12: MANU/DE/3099/2013, (4) Dr. N. P Tripathi Vs. CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 9 of 31 Dayamanti Devi & Anr., AIR 1988 Pat 123, and (5) K. V. Narayanan Murti Vs. Thankamma Sebastian, RC Rev No. 48 of 2005 (dt. of decision
- 19.05.2005) passed by a Division Bench of Kerala High Court comprising Hon'ble Mr. Justice R. Bhaskaran and Hon'ble Mr. Justice K. T. Shankaran.
18. Therefore, there is no merit, both on facts and on law, in this claim of the defendant. This issue is accordingly decided against the defendant and in plaintiffs' favour.
19. Issue no. 7 The issue is whether there exists three separate tenancies for three separate portions of suit property as alleged in para 2 of preliminary objection of the written statement. The onus is on defendant to prove it.
20. Before proceeding further, the following observations in a Delhi High Court decision dt. 31.01.2013 in FAB India Overseas Private Limited Vs. S.N. Sheopori, RFA (OS) No. 118/2011 can fruitfully be referred to.
Mere fact that Fab India Inc. had taken tenancy rights on six different occasions, between 17 th March, 1970 to 1 st June, 1976, does not lead to presumption that the tenancy right in favour of FIOP Ltd., with effect from 1 st January, 1977, were six multiple tenancies and not one single tenancy. On the question whether there exists a single or multiple tenancies viz. Sheopori and Mushran as landlord and FIOP Ltd. as a tenant, we are in agreement and find merit in the contention and the plea of Mushran. As there is no written lease agreement, we have to go with the intention of the parties and whether they had treated and regarded the tenancy rights as singular or had treated the occupation of FIOP Ltd. as one under the six separate tenancies.
21. Therefore, the fact that different portions of the premises were let out CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 10 of 31 on different occasions does not lead to any presumption whatsoever that the tenancies were separate and not single. And consequently, the contention to this effect of Ld. Counsel for the defendant cannot be accepted. What is crucial, in the absence of written lease agreement, is the intention of the parties and whether they treated the tenancy rights as single or different tenancies.
22. The defendant in 1980 commenced with the tenancy by taking portion ABCD of site plan Ex. PW1/2, i.e the showroom. He then few years later took additional space which is EFGH in site plan Ex. PW1/2, i.e the shop. Thereafter, he also took the office which is IJXB in site plan Ex. PW1/2. The relevant extract out of crossexamination of defendant (DW1) is as follows:
The tenancy commenced in 1980. I was doing business of sale of motorcycle in is marked A,B,C,D of Ex. PW1/2. In the beginning I took portion of the property in question on rent which is marked A,B,C and D in site plan Ex. PW1/2. Voln. It is a showroom. It is correct that presently there is no showroom in the premises. Voln. The workshop is going on in the said premises. It is wrong to suggest that the portion A,B,C,D is lying vacant and no work is going on in the said portion. It is wrong to suggest that now a days a neighbour is parking a car in the said portion on my request. It is correct that in the year 1980 I started showroom in the premises mark A to D my business started growing. At that time my landlord was Sh. Pheru Singh but his son Sh. Jagbir Singh used to collect the rent. It is correct that when my business started growing I required additional space for carrying out my business. It is correct that I requested the landlord to provide additional space. I do not remember what rent I used to pay in 1980 in respect of initial tenancy of portion Mark A to D. However, the same was increased @ 10% every 3 years. I requested to provide additional CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 11 of 31 space to Sh. Jagbir Singh in 198586. In 198586 the approximate rent of portion A to D was Rs. 1,000/ p.m. I do not remember the exact rent. It is correct that Sh. Jagbir Singh acceded to my request and additional space was provided to me. I was given additional portion in the property in question which is marked E to H in site plan Ex. PW1/2. I do not remember the exact date on which additional space was provided to me. It is wrong to suggest that on providing the additional space the size of the tenanted portion in the property in question was increased. Voln it was separate portion. It is correct that on providing additional space the landlord also increased the rent.
23. Defendant on being further crossexamined deposed as follows:
It is incorrect to suggest that I was doing the same kind of business in both the portion i.e Mark A to D and E to H after taking the same on rent. It is correct that I was doing sale/purchase and repairs of automobiles/motorbikes. I was not doing any other kind of business in the said two portions. I was doing the said business in the name of M/s Anil Motors. It is correct that in both portions M/s Anil Motors was operating. It is correct that after starting business of my firm M/s Anil Motors in both portions mark A to D and E to H my business further flourish. It is correct that I again requested the landlord to provide additional space for carrying out business of my firm Anil Motors. It is correct that for carrying out this business I asked for additional space from the landlord which is Marked as I,JX,B in Ex. PW1/2. The said additional space was requested by me approximately in the year 2000. The said space was not with me prior to year 2000.
24. Another extract out of the crossexamination of DW1 reads as follows:
It is correct that earlier also a there has been a litigation between plaintiff and me and I have filed certified copies of the same on record which is already Ex. PW1/D1. It is correct that my statement is recorded in the said case which is Ex. DW1/PX1. It is CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 12 of 31 correct that in the said civil suit I have deposed that I have paid the rent for the period April, 98 to December, 98 through cheques to Sh. Jasbir Singh and cheque was of Rs. 3,300/.
25. Yet another extract out of the crossexamination of DW1 is as follows:
It is correct that I have current account No. 1040 with OBC, ND Block, Pritampura Delhi. It is correct that I have issued a cheque no. 659913 dt. 12.4.1998 amounting Rs. 3,300 / in favour of Sh.
Jagbir Singh. It is correct that the said cheque was towards monthly rent. Vol. It is possible that I had issued the cheque at the request of Sh. Jagbir Singh for some reason. It is wrong to suggest that the said cheque was not issue for any other reason.
26. Therefore, the facts which emerge from the pleadings and the evidence are that different portions of the premises were let out on different occasions. The common feature amongst these, however, was:
(I) There was no instrument, or registered deed, creating the lease or leases in respect the premises.
(II) The tenant was common, i.e. the defendant.
(III) All the portions were part of the same property, i.e. the suit premises.
(IV) The defendanttenant took all the three portions on different occasions only and only for his firm M/s Anil Motors for doing commercial activities.
(V) There is positive evidence to show that at least for some time (nine months) in 1998 the defendant was paying monthly rent of CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 13 of 31 Rs. 3,300/ through a single cheque and not multiple cheques.
(VI) There is no document or any reliable evidence to show that rent was paid separately even on one occasion for different portions during the last many years of the tenancy.
(VII) There are no separate rent receipts in respect of the different portions of the premises, for any period, or even one month.
(VIII) Defendant has not placed on record any documentary evidence, in the form of ledger extracts or books of accounts of its business, showing that though a common amount was paid, in its books the amounts were maintained as rents for separate premises, so as to establish its case for separate tenancies, to take the case out of the purview of the civil court, and (IX) Defendant was admittedly taking 'additional space' for 'expansion' of his already existing business.
27. The aforesaid factors, on preponderance of probabilities, establish that the parties were treating the tenancy as single and not different ones and intended to treat the tenancy as an indivisible one. The fact that there is positive evidence that rent of Rs. 3,300/ was being paid per month, at least for nine months in 1998, through single cheque and not through different cheques, is of crucial importance. This factor taken in conjunction with the fact that there is no document or any reliable evidence to show that rent was paid separately even on one occasion during the last many years of tenancy CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 14 of 31 for the three portions assumes greater significance. It is pertinent to mention that in FAB India (supra) payment of rent through a single cheque was a significant factor in holding that the tenancy was being treated as a single one despite the fact that different portions were let out on different occasions for different rentals. In Chander Parkash Chawla Vs. K.K. Kapoor, 1996 (64) DLT 614 issuance of a single rent receipt was taken to hold that tenancy was a single one and not different ones. Coupled with this, the fact that all the three portions are in the same building; let out to the same tenant who took all the portions only and only for his firm Anil Motors also plays a pivotal role. Defendant has not shown its ledger extracts or books of its accounts of its business to substantiate its plea. Next, defendant was admittedly taking 'additional space' for 'expansion' of his already existing business. Taking 'additional space', of course, implies that a separate tenancy was not to be created, rather to the already existing tenancy additional space was added. Further, it appears that before 2004, before the onset of litigations between the two parties, there was hardly any dispute qua the tenancy. It was only in 2004 when legal practitioners intervened that different hue and colour started to be given to the lease. The bottomline therefore is that parties, before the legal practitioners intervened in year 2004, were treating and intended to treat the tenancy as single/indivisible and not different.
28. Where the parties are treating the tenancy as single/indivisible and not different, it is not open to the court, unless the law provides otherwise, to CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 15 of 31 split them into several ones (S. Sanyal Vs. Gian Chand AIR 1968 SC 438). The legal position in this regard appears to be that even if a property or 'accommodation' is let out for two different purposes (i.e. residential and commercial) the courts would not be justified in splitting the tenancy and creating separate transactions, unless permitted by law {Panjumal Daulatram Vs. Sakhi Gopal, AIR 1977 SC 2077}. In Hiralal Kapur Vs. Prabhu Choudhury, AIR 1988 SC 852 the Supreme Court went so far as to say that if portions of the premises are occupied by separate individuals with the approval of the landlord, who receives amounts separately from each of them, as long as the original tenancy was created by one of them, for the whole premises, and a portion was later occupied by another person, at the recommendation of the original tenant, the law would recognize one tenancy between the landlord and the original tenant, and the court cannot split the tenancy.
29. Having regard to these decisions, and upon an analysis of the facts of this case, it is held that regardless of the fact that originally, one portion was let out to the defendant, who was given possession of different portions later, the parties (whose relationship in respect of all the premises, was common, and all the premises being part of the same suit property and purpose of each of them was commercial to be used by Anil Motors) by their conduct and intention were treating the tenancy as a single, indivisible tenancy.
30. At this stage, there is one aspect which is required to be taken note of. CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 16 of 31 The defendant in his crossexamination deposed that in 1998 he paid cheque(s) of Rs. 3,300/ between April and December in respect of portions ABCD and EFGH only and not for portion IJXB as shown in site plan Ex. PW1/2. He further deposed that the portion IJXB was let out to him in 2000. This deposition of the defendant is palpably a false one. Going by defendant's own notice dt. 12.05.2010 (Ex. PW1/6) issued to plaintiffs' counsel the total rent is Rs. 3,300/ (which is inclusive of Rs. 600/ for the office portion 'IJXB'). If the total rent is Rs. 3,300/ of all three portions, then why was the defendant paying Rs. 3,300/ as monthly rental to his landlord in 1998 for two portions only (ABCD and EFGH)? Because for the two portions, as per his notice Ex. PW1/6 he should have been paying only Rs. 2,700/. There is hardly any logic in this. Secondly, the averment that monthly rent of Rs. 3,300/ was paid in 1998 in respect of portions ABCD and EFGH only and not in respect of portion IJXB because IJXB came under tenancy in 2000, is not pleaded in the written statement. Thirdly, this averment is also not there in defendant's written statement in previous civil suit. The position therefore is that monthly rent of Rs. 3,300/ was being paid in 1998 in respect of all three portions (ABCD, EFGH and IJXB) as a single tenancy.
31. It was contended by defendant's counsel that the defendant had deposited rent for the three portions separately under 27 of DRC Act in 2010. This aspect does not in any manner advance defendant's case. What the defendant had averred in his petitions under section 27, Evidence Act is CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 17 of 31 barred by section 21, Evidence Act from being received as evidence in the present case. Section 21, Evidence Act lays down an important principle of law that generally an admission cannot be used by the person who makes it for his own use. An admission will be used by the person in his favour only if and if the same falls within any of the three exceptions laid down therein. In this regard, it would be beneficial to take a look at the first illustration appended to this section. This illustration is as follows: The question between A and B is, whether a certain deed is or is not forged, A affirms that it is genuine; B affirms that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine; nor can B prove a statement by himself that the deed is forged. Now, I shall apply this principle to the instant case. Defendant asserts that there are different tenancies. Therefore, in order to prove this, his own averments as reflected in his petitions under section 27, DRC act can certainly not be relied upon. And in such an eventuality, the bar of section 21, Evidence Act would squarely come into play. His averments in petitions under section 27, DRC Act do not come within any of the three exceptions to section 21, Evidence Act. Secondly, the defendant cannot act in sweet ignorance of the fact his petitions under section 27, DRC Act were 'disposed of without prejudice to the rights and contentions of respondent' (landlord).
32. For similar reasons as aforesaid, defendant's act of sending three CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 18 of 31 separate cheques with his notices Ex. PW1/6 and Ex. PW1/13 and his own assertions therein about three separate tenancies would not advance his case.
33. Defendant strongly relied upon the following extract out of judgment (Ex. PW1/D1) dt. 17.05.2005 in CS no. 184/2004 titled as 'Rajesh Tomar & Anr. vs. Shri Anil Khurana' to advance his case visavis three different tenancies:
8. In reply it is admitted that Shri Pheru Singh had created the three separate tenancy of suit premises in favour of M/s Anil Motors and as such there was a relationship of landlord and tenant between Shri Pheru Singh and M/s Anil Motors. All other averments made in the plaint.
34. Paras 1 to 4 of the aforesaid judgment (Ex. PW1/D1) take note of the facts as set out in the plaint. Paras 5 to 7 takes note of the averments in the written statement. Then comes para 8. It is pretty obvious that para 8 which refers to 'reply' is taking note of averments in the replication filed in response to the written statement. Certified copy of the replication of that civil suit was filed. As per the replication, the plaintiffs had stated (para 2 of reply on merits) that the three separate tenancies were clubbed together and defendant started paying consolidated rent of Rs. 3,300/ per month. In the replication it was also stated (para 3 of reply to preliminary objections) that the defendant is now estopped from claiming that there are three independent tenancies. That is to say, what the plaintiffs had stated was that the three tenancies were clubbed together and defendant started paying consolidated rent. Therefore, this statement cannot mean to say that plaintiffs CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 19 of 31 admit defendant's case about three separate tenancies.
35. Furthermore, the issue whether the tenancy is single or different ones was hardly an issue in the previous civil suit between the parties. It was not directly and substantially in issue in the previous suit. The previous civil suit was for recovery of arrears of rent and as such whether the tenancy was a single one or different ones did not fall for determination. And it was neither heard nor finally decided in the previous civil suit. The law is that even if a court decides an issue which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, it cannot be made the basis of plea of res judicata. The following passage out of decision reported as Ramji Gupta & Anr. Vs. Gopi Krishan Agrawal (dead) & Ors. (2013)9 SCC 438 can be relied upon:
In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata. A question regarding title in a small cause suit may be regarded as incidental only to the substantial issue in the suit, and therefore, when a finding as regards title to immovable property is rendered by a Small Cause Court, res judicata cannot be pleaded as a bar in the subsequent regular suit for the determination or enforcement of any right or interest in the immovable property. (Vide Dhulabhai v. State of M.P. AIR 1969 78; Gangabai v. Chhabubai (1982)1 SCC 4, LIC v. India Automobiles & Co. AIR 1991 SC 884 and Rameshwar Dayal v. Banda (1993)1 SCC 531) CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 20 of 31
36. The following extract (para 12 of the judgment) out of decision of Sajjadanashin Sayed Md. B.E. Edr. (D) by Lrs. Vs. Musa Dadabhai Ummer & Ors. AIR 2000 SC 1238 can also be referred to:
Judicial decisions have however held that if a matter was only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not operate as res judicata in a later proceedings where the matter is directly and substantially in issue.
37. Thirdly, the plaintiffs were not required to appeal against what was contained in para 8 of the the judgment (Ex. PW1/D1) dt. 17.05.2005 in CS no. 184/2004 titled as 'Rajesh Tomar & Anr. vs. Shri Anil Khurana'. This is for the simple reason that an appeal lies against a 'decree' or an 'appealable order'. Moreover the plaintiffs could not have appealed against the suit being decreed. In Deva Ram & Anr. Vs. Ishwar Chand & Anr. (1995) 6 SCC 733 it was held, Thus an appeal does not lie against mere 'findings' recorded by a court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issues has no right of appeal and he cannot question those findings before the appellate court. (see Ganga Bai vs. Vijay Kumar (1974)2 SCC 393)
38. To similar effect is the decision in Ganga Bai Vs. Vijay Kumar (1974)2 SCC 393 wherein it was held that an appeal lies only against an 'appealable order' or a 'decree' and no appeal lies against a mere finding. To similar effect is the decision in The Commissioner of the Ports of Calcutta Vs. Bhairadinram Durga Prasad AIR 1961 Cal 39.
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39. That apart, a valuable right or an interest in the immovable property cannot be said to have accrued or where accrued, demolished, on the mere basis of para 8 of the judgment (Ex. PW1/D1) which, to my mind, does not correctly state the plaintiffs' position about the tenancies. An admission is required to be clear, qualified and unambiguous. Plaintiffs had clearly stated therein that the tenancies were clubbed together and the defendant was paying consolidated rent. Even in the crossexamination of PW1 Jagbir Singh in the previous suit I do not find a single admission on this score. Lastly, the legal principle that an act of the Court will hurt no person is expressed in the legal maxim 'Actus curiae neminem gravabit' (see Japani Sahoo Vs. Chandra Sekhar Mohanty AIR 2007 SC 2762). The plaintiffs cannot be prejudiced by an act of the Court in the face of the fact that 'admissions' cannot be traced to the 'replication' or any 'reply' of the previous suit.
40. I therefore hold that what was contained in para 8 of the judgment (Ex. PW1/D1) dt. 17.05.2005 in CS no. 184/2004 titled as 'Rajesh Tomar & Anr. vs. Shri Anil Khurana' cannot come to the aid of the defendanttenant.
41. I conclude the discussion on this issue by holding that there exists single tenancy for the three portions of suit property. I answer this issue in plaintiffs' favour and against the defendant.
42. Issue no. 1 - The issue is whether defendant is tenant in respect of one showroom measuring 30x20 ft, one workshop and an office measuring 10x8 ft. on monthly rent of Rs. 3,630/ with effect from 01.05.2010. Onus to prove CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 22 of 31 this was placed upon the plaintiffs.
43. In the discussion on issue no. 7 it was held that there existed only a single tenancy. There was also a finding to the effect that monthly rent of Rs. 3,300/ was being paid in 1998 with respect of all three portions (ABCD, EFGH and IJXB).
44. Section 6A, DRC Act requires that rent may be increased by 10% every three years. Section 8 thereof requires that landlord, wishing to increase the rent, shall give the tenant notice of his intention to make the increase and such increase shall be due and recoverable after expiry of thirty days from the date on which the notice is given.
45. In the case at hand, the notice dt. 18.03.2010 (Ex. PW1/3) of enhancement of rent by 10% was admittedly served upon the defendant. Defendant even replied to this through his counsel vide his reply dt. 12.05.2010 (Ex. PW1/6). The notice Ex. PW1/3 was dispatched from Delhi High Court post office on 20.03.2010 through registered post and UPC {postal receipts Ex. PW1/4 and UPC receipts Ex. PW1/5}. The notice were sent to the defendant at three of his addresses in Delhi. Therefore in the normal course of business the defendant would be served within 4 days or the most within one week. Therefore, at any rate the defendant would have been served by 27.03.2004 with the notice for enhancement of rent by 10%. Consequently, with effect from 01.05.2010 {one month later} the rental of the premises was Rs. 3,630/.
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46. I answer this issue by holding that defendant is tenant in respect of one showroom measuring 30x20 ft, one workshop and an office measuring 10x8 ft. on monthly rent of Rs. 3,630/ with effect from 01.05.2010. This issue is decided against the defendant and in plaintiffs' favour.
47. Issue no. 4 - The issue is whether defendant's tenancy stands terminated vide notice dated 09.11.2010 as alleged in para 8 of the plaint. Onus to prove was on the plaintiffs.
48. Monthly rent of Rs. 3,630/ with effect from 01.05.2010 means that civil court has the jurisdiction and the defendant no longer has the protection of DRC Act.
49. In the case at hand, the notice dt. 09.11.2010 (Ex. PW1/10) of termination of tenancy was admittedly served upon the defendant. By way of this notice the plaintiffs sought to terminate defendant's tenancy with effect from 31.12.2010. Defendant even replied to this through his counsel vide his reply dt. 22.12.2010 (Ex. PW1/13). Therefore, there is absolutely no doubt that tenancy was determined in the manner provided under section 106, Transfer of Property Act.
50. In any event of the matter, this question is not of much relevance in view of ratio decidendi of Apex Court in Nopany Investments (P) Ltd. Vs. Santokh Singh (2008)2 SCC 728 and followed by Shrif Ram Pistons & Rings Vs. C.B. Agarwal, MANU/DE/2381/2008, Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chaddha (HUF) 182 (2011) DLT CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 24 of 31 402, Rabindra Nath Saha Vs. Sushma Jain 182 (2011) DLT 456, Shri Radhakrishan Temple Trust Maithan, Agra Vs. M/s Hindalco Rotatron Pvt. Ltd. (2012)II AD (Delhi) 429 and Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani 191 (2012) DLT 594.
51. To conclude the discussion on this issue I hold that defendant's tenancy stood terminated vide notice dated 09.11.2010 (Ex. PW1/10). It also stood terminated on account of ratio decidendi in Nopany Investments (supra). I answer this issue in plaintiffs' favour and against the defendant.
52. Issue no. 5 - The issue is whether plaintiffs are entitled to a decree for possession in respect of the showroom, workshop and the office. Onus to prove this issue was on the plaintiffs.
53. Before proceeding further, the defendant's objection to the grant of reliefs prayed for in the plaint is required to be taken note of and dealt with. It was the stand that the plaint was not signed by the plaintiffs. This stand is perfunctory at best. Smt. Rama Devi, plaintiffs' mother, was duly authorised by the plaintiffs to do the needful in terms of SPA dt. 30.09.2010, which is Ex. PW1/1. The reason for executing the SPA was that plaintiff Rajiv Tomar was about to leave India for United Kingdom and plaintiff Rajesh Tomar was ill. This act of Smt. Rama Devi, being the plaintiffs' attorney, in signing the plaint is covered within the ambit of Proviso to Order VI Rule 14 CPC.
54. The other argument was that plaintiff no. 2 Rajesh Tomar was 'mentally retarded' and as such the instant action could not have been CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 25 of 31 maintained without taking recourse to Order XXXII CPC. Defendant was asked in his crossexamination as to on what basis he said that plaintiff Rajesh Tomar was mentally retarded. He replied that he said so on the basis of Rajiv Tomar's affidavit. One being confronted with Rajiv Tomar's affidavit he conceded that such an averment about 'mental retardness' was not there. Therefore the very basis on which the defendant claimed to have derived his knowledge visavis mental retardness did not exist. Secondly, I find no positive evidence on record which could even remotely suggest that Rajesh Tomar was mentally retarded. The mere self assertions of the defendant in this context, not backed by any supporting material, are hardly of any consequence. Thirdly, it is a matter of record that Rajesh Tomar was examined and crossexamined as PW2 in the previous civil suit CS no. 184/2004 titled as 'Rajesh Tomar & Anr. vs. Shri Anil Khurana'. Therefore, it requires explanation as to how and when did he become mentally retarded in the face of the fact that just few year ago he had entered the witness box and was subjected to crossexamination. Fourthly, I find that there is nothing in the testimony of PW1 to persuade this court to accept that he has admitted that Rajesh Tomar is 'mentally retarded'. PW1 in his crossexamination merely stated that Rajesh Tomar was suffering from many ailments (skin problems) since childhood and he was prone to infections quite often. Being sick and suffering from many ailments cannot be taken to be an admission that he is mentally retarded. Likewise, in none of their notices (Ex. PW1/3, CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 26 of 31 Ex. PW1/7 and Ex. PW1/10) the plaintiffs say that Rajesh Tomar is 'mentally retarded'. Consequently, it stands not proved that Rajesh Tomar is of 'unsound mind' so as to warrant taking recourse to Order XXXII CPC.
55. The defendant does not have the protection of DRC Act. The tenancy is single and indivisible of monthly rental @ Rs. 3,630/ with effect from 01.05.2010. The tenancy already stands determined. And as such plaintiffs are entitled to a decree for possession in respect of the showroom, workshop and the office space {portions ABCD, EFGH and IJXB of site plan Ex. PW1/2 as shown bounded in red colour}. This issue is decided in plaintiffs' favour and against the defendant.
56. Issue no. 2 - The issue is whether defendant is in arrears of rent for the period with effect from August, 2005 to 30.04.2010 at the rate of Rs. 3,300/ per month and at the rate of Rs. 3,600/ per month with effect from 01.05.2010. Onus was on the plaintiffs to prove this issue.
57. This suit was filed on 24.01.2011. Therefore, the plaintiffs would be entitled to only those arrears of rent which are due and payable within three years of filing of the suit. That is to say, the rent accruing after 24 th January, 2008 only would be due and payable.
58. Firstly, I shall take the period from 24th January, 2008 to December, 2009. Defendant avers that he paid the rent till December, 2009; whereas the plaintiffs say that the rent stands not paid from August, 2005. That is to say, it is the word of one person against that of the other and all that is there is the CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 27 of 31 oral evidence. On preponderance of probabilities, on this score I am inclined to go with the defendant for the following reasons. Jagbir Singh, plaintiffs' late father passed away in February, 2010. PW1 in his crossexamination stated that during his life time late Jagbir Singh used to collect the rent. Therefore, on the point whether or not rent till December, 2009 was paid, the word of PW1 cannot be accepted. Only late Jagbir Singh could have clearly stated as to for what period the rent was due. Secondly, litigation commenced between the parties in 2004. It appears to be little unusual that after year 2004 a notice for nonpayment of rent would not have been issued to the defendanttenant; for it would have afforded a good ground to claim eviction for nonpayment of rent under DRC Act. I am therefore not inclined to award arrears of rent for the period from 24th January, 2008 to 31st December, 2009.
59. For the period from January, 2010 to April, 2010 when the monthly rent was Rs. 3,300 and DRC Act applied, the defendant deposited the rent under section 27, DRC Act. Plaintiffs may withdraw the same without prejudice to their rights and contentions.
60. Now for the period between 01.05.2010 to December, 2010. The monthly rent with effect from 01.05.2010 is Rs. 3,630/ which is out of the purview of DRC Act. Tenancy was terminated with effect from 31.12.2010 in terms of the notice Ex. PW1/10. Deposit of rent under section 27, DRC Act for the period of 8 month between 01.05.2010 to 31.12.2010 cannot be said to be valid tender of rent in the face of the fact that with effect from CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 28 of 31 01.05.2010 defendant does not have protection of DRC Act. And as such, plaintiffs are entitled to claim Rs. 3,630/ X 8 months = Rs. 29,040/.
61. I answer this issue by holding that plaintiffs are entitled to claim Rs. 29,040/ from the defendant towards arrears of rent.
62. Issue no. 3 - The issue is whether plaintiffs are entitled to interest on the arrears of rent; and if so, at what rate and for what period. Onus was on the plaintiffs to prove this issue.
63. Plaintiffs' claim to interest is 12% per annum. The premises were let out for commercial purpose. According to section 34 CPC, court can award interest which it deems to be 'reasonable' on the principal sum adjudged from the date of the suit till the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit. Insofar as future interest is concerned, according to section 34 CPC, in matters where there is no contractual rate, the court may award interest at the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. In the case at hand, the tenancy was an oral one and there was no contract about the interest on arrears of rent.
64. Considering the fact that the purpose of letting out the premises was commercial, plaintiffs are awarded future interest @ 12% per annum. Pendente lite interest @ 12% per annum would be 'reasonable' considering the commercial nature of the tenancy.
65. This issue is concluded by holding that plaintiffs are awarded CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 29 of 31 pendente lite and future interest of 12% per annum on the amount of Rs. 29,040/. This issue is accordingly decided in plaintiffs' favour.
66. Issue no. 6 - The issue is whether plaintiffs are entitled to pendente lite and future mesne profit; and if so, at what rate and for what period. Onus was on the plaintiffs to prove this issue.
67. The tenancy stands terminated with effect from 31.12.2010. The plaintiffs did not bring on record rent deeds of similarly situated properties in the locality. However, there are catena of decisions that have held that while determining mesne profits the courts are well entitled to take judicial notice of the increase in rentals of the area where the property is situated. Decisions reported as (i) State Bank of Bikaner and Jaipur Vs. I. S. Ratta & Ors. 120 (2005) DLT 407 (ii) National Radio & Electrical Co. Ltd. vs. Motion Pictures Association 122 (2005) DLT 629, and (iii) Motor & General Finance Ltd. vs. Nirulas & Ors. 92 (2001) DLT 97 can be referred to in this context.
68. Considering the commercial nature of the tenancy, I am inclined to award mesne profits with effect from 01.01.2011 at the rate of Rs. 6,000/ per month in plaintiffs' favour and against the defendant till the vacant and peaceful possession of the tenanted premises. This issue is accordingly decided.
69. Relief In the light of my findings upon the foregoing issues, the suit of the plaintiffs stands decreed in the following terms: (A) Plaintiffs are CS no. 30/11 Rajiv Tomar & Anr. vs. Anil Khurana Page 30 of 31 entitled to recover possession of the tenanted premises from the defendant in property bearing no. 383C/1, East Azad Nagar, Delhi {portions ABCD, EFGH and IJXB of site plan Ex. PW1/2 as shown bounded in red colour}, (B) Plaintiffs are also entitled to recover Rs. 29,040/ as arrears of rentals with pendente lite and future interest of 12% per annum thereon, (C) Plaintiffs are also entitled to claim mesne profits from the defendant with effect from 01.01.2011 at the rate of Rs. 6,000/ per month till the vacant and peaceful possession of the tenanted premises. Costs of the suit awarded to the plaintiffs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (M.P. SINGH)
Dated: 31.03.2014 SCJ/RC (East)
Karkardooma Courts, Delhi.
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