Delhi District Court
Smt. Rasina vs Sh. Abdul Majid on 29 October, 2011
In the court of Sh. Devender Kumar CCJ/ARC (N/E),
Karkardooma Courts Delhi.
UNIQUE I.D. NO.: 02402C0861022008
CIVIL SUIT NO. 01/09
IN THE MATTER OF :
SMT. RASINA
W/O SH. ANWAR
R/O C223, GALI NO. 15,
OLD MUSTAFABAD, DELHI 110094
PLAINTIFF
Versus
SH. ABDUL MAJID
S/O SH. SADI KHAN
R/O C255, GROUND FLOOR,
GALI NO. 15, OLD MUSTAFABAD,
DELHI 110094
DEFENDANT
Date of Institution of the Suit : 02.01.09
Arguments Heard : 29.10.11
Date of Judgment : 29.10.11
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF RENT AND
ELECTRICITY CHARGES AND MESNE PROFITS/DAMAGES
AMOUNTING TO RS. 43,035/
Judgment :
1.Vide this judgment, I shall dispose off a suit for recovery of possession, arrears of rent and electricity charges and mesne profits/damages amounting to Rs. 43,035/ filed by the plaintiff against the defendant. The brief facts of the case are as under :
C.S. No. : 01/09 Page No. 1/16
2. Plaintiff has alleged himself to be the exclusive owner/landlord of property bearing no. C255, Gali No. 15, out of Khasra No. 357, Old Mustafabad, Delhi 110094 which was purchased by the plaintiff from earlier owner Sh. Chhidda Khan. It is further alleged that the defendant has been a tenant under the plaintiff on the ground floor of the above said property in respect of two rooms with common latrine and bathroom on the monthly rent of Rs. 2500/ per month excluding electricity and other charges since 2005 for residential purpose. It is further alleged that the defendant has been a defaulter in making the payment of rent and other charges and has not paid the rent since 01.09.07 despite receipt of legal notices dated 21.07.08 & 10.11.08. It is further alleged that the defendant has not vacated the suit property despite termination of the tenancy of the defendant and is in unauthorized possession of the suit property since 01.09.08 due to defendant is liable to pay damages/charges of user of the premises equable to the rent @ Rs. 2500/ per month till the filing of the suit and thereafter @ Rs. 5,000/ per month at present market rate till vacation of the suit premises. It is further alleged that the defendant has filed a false suit for permanent injunction which was duly replied by the plaintiff and the same was disposed off. It is further alleged that on 22.12.08, BSES has disconnected the electricity supply of the suit premises due to non payment of electricity charges. By the way of present suit, plaintiff has prayed that a decree of recovery of possession and money decree of Rs. 43,035/ with interest @ 18% p.a. and mesne profit/damages @ Rs. 5,000/ per month as future damages with electricity charges and interest @ 18% p.a. on electricity charges be passed in favour of plaintiff and against the defendant. C.S. No. : 01/09 Page No. 2/16
3. Defendant was served and filed WS thereby alleging that the plaintiff has no cause of action to file this case and suit is liable to be dismissed. It is further alleged that the plaintiff has concealed the material facts from this court as defendant was inducted as tenant by the plaintiff on the monthly rent of Rs. 350/ p.m. including electricity and other charges. It is further alleged that the defendant is regularly paying the rent to the plaintiff, but on her refusal to accept the rent, the same was sent by money order which was also refused by the plaintiff. It is further alleged that initially suit property was let out on the monthly rent of Rs.
200/ p.m. including electricity and other charges which was enhanced in 2005 and since then, the plaintiff is paying the rent @ Rs. 350/ p.m. including electricity and other charges. It is further alleged that defendant has also paid Rs. 25,000/ to the plaintiff as security in 1997 which was refundable at the time of termination of the tenancy, but plaintiff neither issued any receipt of security amount nor for the payment of rent till March 2008. It is further alleged that the plaintiff has disconnected the electricity of the rented premises of the defendant on 22.12.08 against which a case has been filed by the defendant which is pending before the court. It is prayed that the plaintiff has filed this suit just to harass the defendant and the suit is liable to be dismissed with heavy cost.
4. Plaintiff has filed replication to the WS of the defendant and has denied all the allegations of the defendant and reaffirmed his pleadings.
5. As per the pleadings of the parties, following issues have been framed by this court vide order dated 24.02.09 as under :
C.S. No. : 01/09 Page No. 3/16
ISSUES :
1. Whether the jurisdiction of the court is barred by section 50 of DRC Act ?
OPD
2. Whether the suit is barred by the provisions of section 41 (1) (a) of Specific Relief Act ? OPD
3. Whether the plaintiff is entitled for the relief of recovery of possession of the suit premises as prayed ? OPP
4. Whether the plaintiff is entitled for the recovery of Rs. 43,035/ as prayed ?
OPP
5. Whether the plaintiff is entitled for the interest over the amount, if so at what rate ? OPP
6. Whether the plaintiff is entitled for the mense profit, if so at what rate ?
OPP
7. Relief
6. To prove the case, plaintiff has examined herself as PW1, Sh. Anwar as PW2, Sh. Rajeev Kumar as PW3, Sh. Chhida Ram as PW4, Sh. Akbar Ali Khan as PW5 and closed PE. The defendant has examined himself as DW1 and closed DE.
I have heard the arguments and perused the record. My issues wise findings are as under :
7. ISSUE NO. 1 :
The onus to prove this issue was fixed upon the defendant. It is submitted by counsel for defendant that this court has no jurisdiction to entertain this suit for possession as present dispute between the landlord and tenant is covered under the C.S. No. : 01/09 Page No. 4/16 provisions of Delhi Rent Control Act and the jurisdiction of this court is barred U/s 50 of DRC Act. It is further submitted that the rate of rent between the parties is Rs. 350/ p.m. and relationship is also admitted and even the area in which the suit property is situated is duly notified under DRC Act and the suit is liable to be dismissed.
On the other hand, counsel for plaintiff has opposed the submissions and has submitted that the area in which suit property is falling is not a notified area under DRC Act due to this court has jurisdiction to entertain this suit and this suit is not barred U/s 50 of DRC Act. It is further submitted that the plaintiff has already proved on record by reply under RTI that the area in which suit property is falling is a separate revenue estate and not notified under section 1 (2) of DRC Act and the suit is liable to be decreed.
I have heard the arguments and perused the record. Though the defendant has not specifically cross examined any witness of the plaintiff on this aspect, yet the issue is legal issue in nature and this court has to consider it. As per document Ex. PW1/35, an information has been received by the plaintiff under RTI through her husband and as per the Ex. PW1/35, SDM Seelampur has replied the query of the plaintiff that the Mustafabad is a separate revenue estate under the sub district of Seelampur, District North East. If the area in which suit property is falling is a separate revenue estate, then the notification of the area for the application of the DRC Act is mandatory as per section 1 (2) of the DRC Act.
I have gone through the detail of the notified area U/s 1 (2) of DRC Act and the revenue estate Mustafabad has not been placed in the details of notified area C.S. No. : 01/09 Page No. 5/16 which suggest that the area is not notified under DRC Act. It has been held by the Hon. Supreme Court of India in IV (2000) SLT 499 titled Mitter Sen Jain Vs. Shakuntala Devi that the notification U/s 1 (2) Proviso of DRC Act is mandatory for the application of DRC Act and merely urbanization U/s 507 of DMC Act is not sufficient. The Hon. High Court of Delhi has also held the same preposition in 65 (1997) DLT 836 titled Smt. Brahma Devi Vs. Krishna Devi. In view of the above said legal preposition, it is clear that the application of DRC Act is not automatic just by urbanization of the area U/s 507 of DMC Act. In the present case, it is clear that the area in which suit property is falling is yet to be notified, accordingly the DRC Act is not applicable in the present case.
Even otherwise the defendant had filed a petition U/s 45 of DRC Act before the court of Ld. ARC, but the same was dismissed as withdrawn. As per the withdrawal application, which is Ex. PW3/2, the petition was dismissed as withdrawn for the want of jurisdiction of the Ld. ARC as the area was not notified under DRC Act and this fact clearly proved that the defendant has himself conceded to this plea before the court of Ld. ARC that the area in which suit property is falling is not a notified area under DRC Act. As such, the defendant has failed to prove this issue and the issue is decided against the defendant and this court has jurisdiction to entertain this suit.
8. ISSUE NO. 2 :
The onus to prove this issue was fixed upon the defendant, but the defendant has neither cross examined any of the witness of the plaintiff on this C.S. No. : 01/09 Page No. 6/16 aspect nor led his evidence to this effect. In the absence of any evidence, this issue could not be proved by the defendant. Even otherwise the provision of section 41 (1) (a) of the Specific Relief Act is applicable only to the injunction suit and the same is not applicable in the present suit for recovery of possession, arrears of rent and damages. This issue is also decided against the defendant.
9. ISSUES NO. 3 TO 6 :
The onus to prove issues no. 3 to 6 was fixed upon the plaintiff. All the issues are being take up together as all are inter related. It is submitted by the counsel for plaintiff that the plaintiff has already terminated the tenancy of the defendant vide legal notices and the relationship between the parties is not disputed. It is further submitted that the defendant has failed to make the payment of the arrears of the rent and it has already proved on record by testimony of plaintiff as well as admission of the defendant due to the plaintiff is also entitled for the recovery of the arrears of rent amount. It is further submitted that the defendant has withheld the legal amount of the plaintiff due to he is also entitled to pay the interest over the arrears. It is further submitted that the tenancy of the defendant has been terminated and after termination of the tenancy, the defendant is a tress passer in the suit property due to he is liable to pay the mesne profit. It is further submitted that the suit is liable to be decreed as the plaintiff has already proved all the facts on record.
On the other hand, counsel for defendant has opposed the submissions and has submitted that as per the legal notices sent by the plaintiff, the tenancy was not terminated by the plaintiff due to the plaintiff is not entitled for any recovery of C.S. No. : 01/09 Page No. 7/16 possession. It is further submitted that even the rate of rent has not been proved by the plaintiff and the rate of rent is Rs. 350/ p.m., due to the recovery amount of the plaintiff in the suit is much more than the due amount, due to the suit is liable to be dismissed. It is further submitted that if the amount claimed by the plaintiff in this suit is not due against the defendant, then the plaintiff is also not entitled for any interest. It is further submitted that if the tenancy has not been terminated by the plaintiff till date, then the plaintiff is not entitled for any mesne profit as the possession of the defendant is lawful possession and the defendant is still a tenant of the plaintiff and suit is liable to be dismissed.
I have heard the arguments and perused the record. The relationship between the parties is not disputed as the defendant has already admitted the relationship of landlord and tenant between the parties in para 2 of the examinationinchief of DW1. However the period of tenancy is disputed as the defendant has alleged that the premises was let out in the year 1997, whereas the plaintiff has alleged that the same was let out in the year 2007. This fact has been clarified and deposed by PW2, who has specifically deposed that the premises was let out in the year 2005. PW1 has also proved this fact. PW1 has denied the suggestion put to her by the defendant that the premises was let out in the year 1997 and the PW2 has deposed that after two years of construction of first floor, Sh. Chand was inducted as tenant and he remained in the first floor portion upto 01.04.07 and thereafter the defendant was inducted. As such, this fact has been proved by the PWs that the defendant was inducted as tenant in the premises in the year 2007.
C.S. No. : 01/09 Page No. 8/16
Further the rate of rent has been disputed by the defendant. The defendant has alleged that the rent was initially fixed for Rs. 200/ p.m. which was enhanced to Rs. 350/ p.m., whereas the plaintiff has alleged that the rate of rent was fixed for Rs. 2500/ p.m. This fact has been proved by PW5 Sh. Akbar Ali Khan that he arranged the rented accommodation for the defendant and the advance rent of Rs. 2500/ p.m. was agreed between the parties at the time of tenancy. It is further deposed that the defendant was also agreed to pay half of the electricity charges as per the consumption. During the cross examination, PW5 has also proved that he used to pay the rent of Rs. 3700/ p.m. to the plaintiff. It is denied that he was paying the rent for Rs. 400/ p.m. to the plaintiff. Though the earning of the PW5 was less then the rent amount, yet he has deposed that he was getting a salary of Rs. 4,000/ p.m., and was having a big family, but other family members were also earning due to he was having the capacity to pay the amount of rent. As such, this fact has also been proved by PW5. Further the DW1 has deposed during the cross examination about the financial condition of the family members of Sh. Chand Mohd who was earlier tenant and his family was earning a lot which suggest that he must be paying the rent alleged by the plaintiff.
Besides it, it has been admitted by the defendant that Fridge and T.V. had been purchased by him and cooler was gifted and he is using the appliances for the last three years. It is further deposed that the electricity connection in the suit property was installed in the year 2005 and he is also using the Fan and Bulb in the suit property. It is further deposed that merely the electricity charges for the two months was not less than Rs. 350/. It is further deposed that he cannot tell C.S. No. : 01/09 Page No. 9/16 the month from which he had to pay the enhanced rent. It is further deposed that the enhanced rent was Rs. 350/ p.m. including electricity for one fan and one bulb. It is further deposed that other electric appliances were not included in the rent and amount was payable separately. It is further deposed that in para 5 of the plaint Ex. PW1/31 from point A to A1, it has been mentioned that the enhancement was Rs. 300/ p.m. including all other charges. It is further deposed that he has lastly paid the rent of Rs. 350/ p.m. in the month of March 2008 excluding electricity and other charges except the charges of one fan and bulb, to the husband of the plaintiff. It is further deposed that the last paid rent was for the month of March 2008. It is further deposed that in reply to the notice Ex. PW1/32, he has stated in Para 2 of the reply that the rent is paid till the month of April 2008 and the same is also mentioned in Ex. DW1/4. It is admitted that he has never paid the electricity charges directly to the electricity department. It is further deposed that in Ex. DW1/4, it has been mentioned that he used to pay the electricity charges as per the consumption to the electricity department directly. It is further admitted that it was agreed between him and the plaintiff that the electricity charges were to be divided between him and other tenants as per the consumption as per the bill raised by the concerned department. It is further admitted that he has not paid the rent since April 2008 and the electricity dues against him are since December 2008 to till date. It is further admitted that he has never tendered rent of Rs. 2500/ p.m. and electricity charges half of the bill amount personally as well as through money orders to the plaintiff. It is further admitted that he has not sent the electricity charges through money orders nor deposited U/s 27 of DRC C.S. No. : 01/09 Page No. 10/16 Act before the court of Ld. ARC, Sh. Praveen Singh. It is further admitted that he has not deposited the rent in the present suit U/o 39 Rule 10 CPC or before any court under Punjab Indebtness of Relief Act or any other provision of law @ Rs. 2500/ at the admitted rate of Rs. 350/ p.m. till date.
I have gone through the testimonies of the witnesses. Testimony of the defendant itself suggest that the rate of rent admitted by the defendant is not feasible and practically possible because no one let out any premises to anyone on the monthly rent of Rs. 350/ p.m. including electricity charges with all electricity appliances. It is not feasible that a person who is just paying a rent of Rs. 350/ p.m. is consuming electricity charges for more than rent amount. As such, the plea taken by the defendant is contradictory plea and shaking which suggest that it is not a true plea. The defendant has himself alleged in the reply to the legal notice that the rate of rent was Rs. 300/ p.m., but again he has alleged the rent as Rs. 350/ p.m. including electricity and other charges, whereas during the cross examination, DW1 has deposed that the charges of Rs. 350/ p.m. were including electricity consumed by one bulb and one fan and the other charges were payable separately. This contradiction shows that the defendant has taken a false plea. DW1 has admitted that he has never tendered Rs. 2500/ p.m. and half electricity charges of the bill amount as well as through money orders to the plaintiff despite the admission that he was liable to pay half of the electricity charges besides the rent and this fact clearly proved that the rate of rent was Rs. 2500/ p.m. and the defendant was liable to pay half of the electricity charges. C.S. No. : 01/09 Page No. 11/16
The defendant has taken a plea that an advance of Rs. 25,000/ was paid by the defendant to the plaintiff as security, but the defendant has neither led any oral evidence nor proved any documentary on record to prove that a sum of Rs. 25000/ was ever paid by him as advance to the plaintiff at the time of letting out the premises. Contrary to it, the PW5 has proved that only a sum of Rs. 25,000/ was paid as one month advance by the defendant and PW5 is the witness in whose presence suit premises was let out. If the witness in whose presence the premises was let out is denying this fact that the advance of Rs. 25,000/ was paid, then it is very difficult to prove by the defendant that a sum of Rs. 25,000/ was ever paid by him as advance money. In the absence of any oral or documentary evidence by the defendant, this fact also could not be proved on record.
The defendant has further taken a plea that the plaintiff is not the owner of the suit property. PW4 has proved that he sold out the suit property about 13 years back to the plaintiff in the sum of Rs. 45,000/ and the documents Ex. PW1/2 to PW1/6 and Ex. PW1/6 to Ex. PW1/13 were executed and handed over to the plaintiff against the sale consideration. These documents prima facie proves that the plaintiff is the owner of the suit property. Even otherwise the defendant being tenant cannot challenge the title of the plaintiff in any manner, even if title is defective. It has been held by Hon. Supreme Court of India in 1999 (Suppl) CCC 545 (SC) titled S. Thangappan Vs. P. Padmavathy that a tenant is debarred from denying the title of his landlord from the beginning of his tenancy howsoever defective titled of such landlord may be. The tenant shall be estopped U/s 116 of Evidence Act. Further in AIR 1954 DELHI 255 titled Mrs. Dr. P. S. Bedi Vs. C.S. No. : 01/09 Page No. 12/16 Project & Equipment Corporation of India Ltd. held that the tenant is estopped from challenging the title of the landlord. This preposition of law has been further repeated in 130 (2006) DLT 667 titled Vishal Blds. Pvt. Ltd. Vs. DDA & Ors. In view of the above said legal preposition, it is clear that the tenant cannot challenge the title of the plaintiff.
Now the matter comes as to whether the tenancy of the defendant has been terminated or not ? To prove it, the plaintiff has proved two legal notices on record which are Ex. PW1/25 and Ex. PW1/28 and admitted and replied documents of the defendant. Vide Ex. DW1/4 and DW1/5. These legal notices are proving intention of the plaintiff that the plaintiff was not interested in keeping the defendant her tenant any more and she was willing to terminate the tenancy of the defendant. Though in first legal notice Ex. PW1/25 no specific word of termination of tenancy has been mentioned, yet Ex. PW1/28 is explaining this fact that the previous notice was intended to terminate the tenancy of the defendant. By the clarifications of Ex. PW1/28, it is clear that the tenancy of the defendant has been terminated by these notices. Even otherwise it has been held by the Hon. Supreme Court of India in 146 (2008) DLT 217 (SC) titled No Pany Investment (P) Ltd. Vs. Santokh Singh (HUF) that filing of eviction suit is itself a notice to quit on tenant. After the termination of the tenancy, the defendant is liable to vacate the premises and the plaintiff will be entitled for the possession.
So far the recovery of the arrears of rent is concerned, the plaintiff has alleged that the defendant has paid the rent till 31.07.08 and has not paid the rent C.S. No. : 01/09 Page No. 13/16 since 01.09.07 despite service of legal notice Ex. PW1/25 and PW1/28. The defendant has admitted during cross examination as DW1 that he has not paid the amount since 01.04.08. It has been proved on record that the rent was not payable @ Rs. 300/ p.m. including all other charges or Rs. 350/ p.m. including other charges due to the deposition of rent by defendant if any with regard to rent @ Rs. 350/ p.m. is of no use. However the plaintiff has cross examined the DW1 who has deposed that the month of tenancy starts from first day of each english calender month and ends on first day of next english calender month and he used to pay the rent after completion of month. If the defendant was depositing any amount less than Rs. 2500/ p.m. which was the rent as proved before this court, then the defendant is further liable to pay the balance mount of the rent of the tenanted premises. The plaintiff has specifically proved on record that the defendant is in arrears of rent w.e.f. 01.09.07 and the defendant has not proved any amount of payment of electricity charges vide document Ex. DW1/2 & DW1/9 that he was depositing the amount with the court of Ld. ARC. The defendant is further liable to pay the arrears of rent w.e.f. 01.09.07 @ Rs. 2500/ p.m. subject to adjustment of the amount which has already been deposited with the court of Ld. ARC vide document Ex. DW1/2 and DW1/9. As such, the plaintiff is liable for the said amount.
So far the recovery of the electricity charges is concerned, it has already been admitted by the defendant that he was liable to pay half of the electricity charges as per the consumption but he has not paid the same. The plaintiff has sought the recovery of the electricity charges of Rs. 4435/ as per the bill C.S. No. : 01/09 Page No. 14/16 deposited by him accordingly the plaintiff is entitled for such recovery.
So far the damages/mesne profit is concerned, the plaintiff has sought the damages @ Rs. 2500/ p.m. for the property w.e.f. 01.09.08 till 30.11.08 and the same are equal to rent amount, accordingly the plaintiff is further entitled for the same. The plaintiff has again sought the damages @ of Rs. 5000/ p.m. from the date of filing of the suit till recovery of the possession. Though the plaintiff has neither examined any witness nor proved any document on record that the suit property may fetch the market rent of Rs. 5,000/ p.m. as on today or at the time of filing the suit. In the absence of any such witness or documentary evidence, it could not be proved that the plaintiff is entitled for the recovery of the mesne profit at the rate of Rs. 5,000/ per month. However the defendant has deprived the plaintiff from the premises despite termination of the tenancy, accordingly the plaintiff is definitely entitled for the higher mesne profit then the actual rent. Further the defendant has deprived the plaintiff from utilization of legitimate amount of the plaintiff, accordingly the defendant is also liable to pay the interest over the amount. As such, the plaintiff has proved that he is entitled for the recovery of the possession, recovery of arrears of rent and electricity charges as well as future damages along with the interest. Plaintiff has proved all the issues and all the issues are decided in favour of plaintiff and against the defendant.
10. RELIEF :
The plaintiff has proved that she is entitled for the relief, accordingly I hereby pass a decree of possession of the property bearing no. C255, Gali No. 15, out of Khasra No. 357, Old Mustafabad, Delhi 110094 situated at ground floor as C.S. No. : 01/09 Page No. 15/16 shown red in the site plan Ex. PW1/1. I hereby further pass a money decree of Rs. 41,935/ in favour of plaintiff and against the defendant for recovery of arrears of rent/damages and electricity charges, subject to adjustment of the amount already deposited with the court of Ld. ARC. The plaintiff further shall be entitled for the damages @ Rs. 3,000/ p.m. from the date of filing of the suit till recovery of the possession. The plaintiff further shall be entitled of the interest @ 6% per annum over the recovery of the amount of money decree along with the cost of the suit. Pleaders fee is also awarded as per rules. Decree sheet be prepared subject to payment of deficient court fees for mesne profits. File be consigned to record room.
Announced in the open court (Devender Kumar) CCJ/ARC/MM 29.10.2011 C.S. No. : 01/09 Page No. 16/16 C.S. No. : 01/09 29.10.11 Pr. : Counsel for plaintiff Counsel for defendant Arguments heard.
Vide separate judgment, suit of the plaintiff has been decreed along with cost of the suit. Pleaders fee is also awarded as per rules. Decree sheet be prepared accordingly subject to payment of court fees for mesne profits. File be consigned to record room.
(Devender Kumar) CCJ/ARC/MM 29.10.11 C.S. No. : 01/09 Page No. 17/16