Delhi District Court
Sh. Kalu Ram vs Sh. Ramesh on 29 August, 2013
IN THE COURT OF Ms. POOJA GUPTA: CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Civil Suit no.366/11
Unique ID no.02406C0259842011
IN THE MATTER OF:
Sh. Kalu Ram,
S/o: Nanak Chand,
R/o: Jhuggi No.D444, BlockD,
(Near D431, DDA Flats),
Janta Jeevan Camp, Tigri,
New Delhi110062. ......Plaintiff
Versus
Sh. Ramesh,
S/o Sh. Mange Ram,
R/o LII, 11/864, Sangam Vihar,
New Delhi110062. .....Defendant
DATE OF INSTITUTION : 07.10.2011
DATE OF RESERVING THE ORDER : 23.08.2013
DATE OF DECISION : 29.08.2013
JUDGMENT
1. The plaintiff has filed the present suit against the defendant Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 1 of 22 seeking the following reliefs:
● Permanent injunction against creation of third party interest in the suit property bearing no.L2/864, Gali No.11, Sangam Vihar, New Delhi62;
● Mandatory injunction for vacation of the suit premises by the defendant and handing over of the same to the plaintiff; ● Recovery of Rs.6430/ against defendant towards arrears of electricity charges;
● Damages with interest and cost of the suit. Facts as per plaint. 2. In 2006 the plaintiff wanted to construct a house on his
portion of the plot which he had purchased jointly with his brothers and had also bought a portion thereof from one of his brother Sh. Ramji Lal after the plot had been partitioned. For the purpose of construction the plaintiff approached the defendant who is also his brother in law (jija) who agreed to advance Rs.92,000/ to the plaintiff on the condition that Rs.52,000/ were to be repaid within two years by the plaintiff and the defendant would be given permissive user licence for the period of five years w.e.f. 01.10.2006 to 01.10.2011 in lieu of the loan amount of Rs. Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 2 of 22 40,000/ and the defendant would occupy the ground floor and the first floor for five years. It was also agreed that the electricity bill would be paid by the defendant.
3. The loan amount was utilized in the construction of the house and the defendant occupied the premises as permissive user.
However electricity to the suit premises was disconnected due to default in payment of the electricity charges by the defendant and the electric meter was also removed by the competent authority.
4. A mutual agreement dated 25.09.2006 was reduced in writing by the defendant to avoid future disputes. On 10.02.2008 the defendant himself made an endorsement on the loan agreement for receipt of Rs.49,000/ which had been released to the plaintiff by the chit committee and matured on 10.02.2008. The amount of Rs.3,000/ still remains due.
5. The agreed period for licence of the defendant expired on 01.10.2011 and a legal notice dated 26.08.2011 was sent to the defendant calling upon him to hand over the premises on the expiry of the agreed period of 01.10.2011. However despite receipt of the notice the defendant did not comply with the same nor cleared the electricity charges. A suit Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 3 of 22 filed by the defendant against the plaintiff for permanent injunction was dismissed as withdrawn upon the statement of the plaintiff. As the defendant has no legal right to continue to stay in the premises, and has extended threats for creation of third party interest in the suit premises as also as the defendant is causing damage to the plaintiff @ Rs.2,500/ per month which is the prevailing market rate of rent in the locality, hence the present suit which has been filed on 07.10.2011.
Facts as per written statement.
7. Preliminary objections have been raised in respect of the suit being barred under Section 41(h) of the Specific Relief Act and non filing of proper court fees. Preliminary submissions have been made wherein the defendant has admitted the prior litigation i.e. the suit for permanent injunction; the defendant has also admitted that a request was made by the plaintiff in August 2006 for giving money for construction of his house. It has also been admitted that a sum of Rs.92,000/ was given by the defendant to the plaintiff though it is claimed that the agreement was made only on 25.09.2006. It is further admitted that the sum of Rs. 52,000/ was to be returned within two years though it is contended that in case of default it was agreed that interest @3% per month would be Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 4 of 22 payable. It has been averred that in lieu of Rs.40,000/ the defendant was permitted to live with his wife in the suit property in one hall on the ground floor and one room and toilet on the first floor.
8. It is the defence of the defendant that a sum of Rs.20,000/ had been taken by the plaintiff on 25.09.2006 for the marriage of his daughter which was to be returned with 3% interest within two years. The defendant has also referred to another agreement dated 26.09.2006 for Rs.80,000/ as per which the sum of Rs.80,000/ was to be returned with 3% interest. Reference has also been made to another agreement dated 01.10.2006 as per which the plaintiff took Rs.35,000/ from the defendant for some work in the suit property.
9. It is also the defence of the defendant that on 20.01.2007 the plaintiff on his surety made the defendant give Rs.40,500/ @3% interest to one of his relatives Bisambher Singh and undertook to return the money in case Bisambher Singh did not repay the same. It is also the defence of the defendant that the plaintiff refused to return the money despite repeated requests. It is also the claim of the defendant that in case the plaintiff is not in a position to return the money then he can adjust the amount of the rent against the property for the next 8 years. Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 5 of 22
10. On merits the defendant has not disputed the contents till para 11 of the plaint and for reasons best known to the defendant has not filed any reply to the averments as made in para 12 to 22 of the plaint. Facts as per replication
11. The plaintiff has reiterated the maintainability of the suit for mandatory injunction and has also reiterated that adequate court fees has been affixed. It has been reiterated that no interest has been paid on Rs. 49,000/ and nothing remains due to be paid by the plaintiff except Rs. 3,000/. The plaintiff has denied the agreement dated 25.09.2006 for Rs. 20,000/ and agreement dated 01.10.2006 for Rs.35,000/ and has also denied taking of any loan of Rs.80,000/. The plaintiff has also denied that he ever stood surety for Rs.40,500/ on interest @ 3% per month towards loan for Sh. Bishamber Singh. It has been reiterated that the plaintiff only took loan of Rs.92,000/.
Issues
12. From the pleading of the parties the following issues were framed on 03.08.2012:
(1) Whether the suit of the plaintiff is maintainable as in the garb of mandatory injunction, the relief of possession is being sought?OPP Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 6 of 22 (2) Whether the valuation of the suit is proper and adequate court fees has been paid there on?OPP (3) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer A of the plaint?OPP (4) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer B of the plaint?OPP (5) Whether the plaintiff is entitled to the relief of recovery for arrears of electricity charges as prayed for in prayer C of the plaint?OPP (6) Whether the plaintiff is entitled to the relief of damages? If so, for what period and at what rate?OPP (7) Whether the suit of the plaintiff is barred under Section 41 of Specific Relief Act?OPD (8) Relief, if any.
Evidence
13. To prove his case the plaintiff examined only himself as PW1 and tendered his evidence by way of affidavit (Ex.PW1/1A) reiterating the averments of the plaint and relied upon the following documents:
● GPA dated 10.05.1982 (Ex.PW1/1) (Colly.);
● Agreement to sell dated 10.05.1982 (Ex.PW1/2) (Colly.);
● Affidavit dated 10.05.1982 (Ex.PW1/3),
● Cash receipt (Ex.PW1/4);
● Photocopy of the undated letter executed by Ramji Lal in
Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 7 of 22
his favour (Mark PW1/5);
● Site plan (Ex.PW1/6) bearing his signatures at point A;
● Mutual agreement dated 25.09.2006 (Ex.A) bearing his
signature at point A and of the defendant at point B;
● Legal notice (Ex.PW1/8) with photocopies of postal receipt,courier receipt and tracking report (Ex.PW1/9 to Ex.PW1/11);
● Photocopy of the electricity bill (Mark PW1/12).
14. The witness was duly cross examined on behalf of the defendant and was confronted with photocopy of agreement dated 25.09.2006, 26.09.2006, 01.10.2006 and 20.01.2007 which have been marked as Mark PW1/D1, Mark PW1/D2, Mark PW1/D3 and Mark PW1/D4 respectively.
15. In support of his defence, the defendant also examined only one witness i.e. himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/A on similar lines as his written statement though the deposition in para 8 and 9 of Ex.DW1/A are beyond the pleadings. DW1 also relied upon the following documents:
● Copy of the agreement made on 25.09.2006 (MarkPW1/D1); Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 8 of 22 ● Copy of the agreement dated 26.09.2006 (Mark PW1/D2); ● Copy of agreement dated 01.10.2006 (Mark PW1/D3); ● Copy of the undated agreement (Mark PW1/D4).
16. No rebuttal evidence was led and final arguments were advanced on behalf of both the parties.
17. I have carefully considered the submissions made on behalf of the parties and carefully perused the evidence on record.
18. From the evidence on record my issue wise findings are as under:
Issue no. 1: Whether the suit of the plaintiff is maintainable as in the garb of mandatory injunction, the relief of possession is being sought? and Issue No.7: Whether the suit of the plaintiff is barred under Section 41 of Specific Relief Act?
19. These two issues are being decided together as common question of law and fact arise therein. While the onus to prove issue no.1 was on the plaintiff, the onus to prove the issue no.7 was on the defendant. It has been averred by the plaintiff in his plaint and reiterated Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 9 of 22 in his evidence Ex.PW1/A that the defendant was given permissive user licence for five years.
20. Para no.4(b) of the plaint reads as: "After the construction of house in lieu of loan amount of Rs. 40,000/ the plaintiff would give permissive user license to the defendant for a period of five years wef 01.10.2006 to 01.10.2011 and will occupy the ground floor and first floor for period of five years. It was mutually agreed that electricity bill would be paid by the defendant."
21. Para 8 of the plaint reads as: "That the defendant enjoyed the suit property for the agreed period as a permissive user/licencee which is expired on 01.10.2011"
22. In the written statement, the defendant has admitted the contents of the para no.4 to be matter of record and admitted the averments as made in para 8. No defence has been set up by the defendant that he was occupying the suit premises in any other capacity other than the one ascribed to him by the plaintiff. Even during his cross examination, DW1 admitted that in lieu of amount of Rs.40,000/ it was agreed that defendant would reside in the premises of the plaintiff for five years from 01.10.2006 to 01.10.2011.
Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 10 of 22
23. In the present case, the plaintiff has averred in para 9 of the plaint that a legal notice dated 26.08.2011 was sent to the defendant calling upon him to handover the suit premises back to the plaintiff as the period of five years was getting completed on 01.10.2011. The defendant has also admitted the same in his written statement. Even during his crossexamination, defendant as DW1 admitted that he had received a legal notice on the address i.e. LII, 11/864, Sangam Vihar. The period as agreed between the parties expired on 01.10.2011 in terms of the agreement Ex.A. The present suit has been filed on 07.10.2011. Thus, there is no delay in filing the present suit.
24. In the case of "Sant Lal Jain v Avtar Singh" cited as AIR 1985 SC 857 the Supreme Court referred to Milkha Singh v. Dvna and Ors. Cited as AIR 1964 J&K 99 wherein it has been observed that after the termination of licence, the licensee is under clear obligation to surrender his possession to the owner and if he fails to do so, there was no reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief Act. It has been further observed that where a licensor approaches the court for an injunction within a reasonable time after the Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 11 of 22 licence is terminated, he is entitled to the injunction.
25. The judgment in the case of "Gurcharan Singh Sohal v Jasbir Singh Sohal" cited as 181 (2011) DLT 344 also reiterates the proposition that a suit for injunction is maintainable in the absence of the relief of possession in case the plaintiff approaches the court within reasonable time.
26. Hence, as the defendant has admitted to being a licencee of the plaintiff and has also admitted the receipt of the legal notice calling upon him to vacate the premises and also as the present suit has been within 7 days from the date of termination of licence by expiry of the agreed period, the plaintiff has been able to prove the maintainability of the present suit for mandatory injunction. No evidence has been led by the defendant to disprove the same.
27. Further the defendant has also not proved how the suit is barred under Section 41(h) of the Specific Relief Act. Accordingly, these issues are decided in favour of the plaintiff and against the defendant. Issue no.2: Whether the valuation of the suit is proper and adequate court fees has been paid there on?
28. The onus to prove this issue was on the plaintiff. As per the Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 12 of 22 plaint, the valuation for the purposes of the relief of permanent injunction and mandatory injunction has been put at Rs.130/ each upon which the court fees of Rs. 13/ each has been affixed. During the course of final arguments, the plaintiff has relied upon Section 7(iv) (d) of the Court Fees Act in support of its valuation and court fees. In a suit for injunction, the valuation and court fees are governed by Section 8 of the Suit Valuation Act and Section 7(iv) (d) of the Court fees Act, as per which the plaintiff is to state the amount at which he values the relief, and the court fees payable is according to the amount at which the relief sought is valued in the plaint and the valuation for the purpose of the court fees and the jurisdiction is to be the same. Thus, it cannot be said that the valuation as done by the plaintiff is not proper. Similarly, for the relief of recovery of Rs. 6430/ as arrears of electricity charges, the valuation has been done at Rs. 6,430/ upon which court fees of Rs. 785/ has been paid. In view of Section 7(i) of the Court Fees Act, read with Section 8 of the Suits Valuation Act, in suits for money valuation is to be done and court fees is to be paid according to the amount claimed. A total court fees of Rs. 1600/ has been affixed. As no evidence has been led nor any argument has been advanced by the defendant to the contrary, there is no Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 13 of 22 reason to disbelieve the valuation done or court fees as affixed by the plaintiff. Accordingly this issue is decided in favour of the plaintiff and against the defendant.
Issue No.3: Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer A of the plaint?
29. The onus to prove this issue was on the plaintiff. The relief of permanent injunction can be granted where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property. In his plaint, the plaintiff has averred that on 03.10.2011, the defendant extended a threat to the plaintiff that in case he was compelled to vacate the house, he would create third party interest in the suit property and has further averred that the plaintiff has apprehension of threat and danger at the hands of the defendant in respect of creation of third party interest. The plaintiff as PW1 has deposed on similar lines in Ex. PW1/A. There has been no specific denial of these averments of the plaintiff by the defendant in the written statement. Further even during the cross examination of PW1,no questions were put to the witness in respect of the incident dated 03.10.2011 nor even a suggestion was put forth in respect of any falsity of the same. Thus, the testimony of PW1 in this respect Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 14 of 22 goes unrebutted and is deemed to be admitted by the defendant. No evidence has been led by the defendant to disprove the version of the plaintiff nor to challenge the existence of the right of the plaintiff in the suit property. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue no.4: Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer B of the plaint?
30. The onus to prove this issue was on the plaintiff. The relief of mandatory injunction can be granted to prevent the breach of an obligation where it is necessary to compel the performance of certain acts which the court is capable of enforcing by compelling the performance of the requisite acts. As has already been discussed in the issue no.1 and 7, the defendant has admitted that he was only a permissive user/licencee in the suit premises and has further admitted that he had received the legal notice calling upon him to vacate the suit premises upon expiry of the agreed period. A licencee has no right to continue to be in possession after the termination of the licence as has also been observed in "Sant Lal Jain v Avtar Singh" (Supra). To permit the defendant to retain the possession of the suit ptoperty would amount to breach of an obligation Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 15 of 22 existing in favour of the plaintiff in respect of the suit property. Thus the plaintiff has been able to prove his entitlement upon admissions of the defendant as his right in the suit property has remained unchallenged.
31. On the other hand, the defence of the defendant is that the plaintiff is liable to pay certain money to him and in lieu thereof he should be permitted to reside in the premises for 8 years. The defendant as DW1 has deposed in Ex. DW1/A that the sum of Rs.92,000/ was given vide agreement dated 25.09.2006 as per which interest @3% per month was also agreed to be payable on Rs. 52,000/ if not paid within the stipulated period of two years. DW1 has further deposed that the sum of Rs.20,000/ had been taken by the plaintiff on 25.09.2006 for the marriage of his daughter which was to be returned with 3% interest within two years. DW1 has relied upon the agreement Mark PW1/D1.
32. During the crossexamination of plaintiff, though he admitted his signatures at point B the same is of little consequence as he denied his signatures at point A. Further DW1 has not been sable to withstand the rigours of crossexamination in respect of Mark PW1/D1. DW1 deposed during his crossexamination that he was not aware of what is written in his affidavit Ex.DW1/A. DW1 further deposed that on Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 16 of 22 25.09.2006 two agreements were made, one on his letter head and the other on an affidavit. DW1 further deposed that in the agreement made on his letterhead the sum of Rs.35,000/ and on the affidavit the sum of Rs.92,000/ was mentioned. DW1 deposed that on 25.09.2006 no other agreement was made. Thus as per the own testimony of DW1 no agreement was entered into between the plaintiff and the defendant on 25.09.2006 for Rs. 20,000/ but it was for Rs.35,000/. Such testimony is contrary to the defence set up by the defendant in his written statement. Further the defendant has also failed to prove the Mark PW1/D1 as the same is in respect of Rs. 52,000/ and Rs. 20,000/ and not Rs. 35,000/ and Rs.92,000/. Be that as it may, the original document of Mark PW1/D1 has not been produced nor any circumstances have been pleaded or proved to lead secondary evidence to prove Mark PW1/D1. Thus, Mark PW1/D1 remains unproved.
33. The defendant as DW1 also deposed that another agreement dated 26.09.2006 for Rs.80,000/ was entered into as per which the sum of Rs.80,000/ was to be returned with 3% interest. DW1 has also deposed that another agreement dated 01.10.2006 was entered into by which the plaintiff took Rs.35,000/ from the defendant for some work in Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 17 of 22 the suit property. DW1 has also deposed that on 20.01.2007 the plaintiff on his surety made the defendant give Rs.40,500/ @3% interest to one of his relatives Bisambher Singh and undertook to return the money in case Bisambher Singh did not repay the same. DW1 has also deposed that in case the plaintiff is not in a position to return the money then he can adjust the amount of the rent against the property for the next 8 years. He has relied upon Mark PW1/D2 to Mark PW1/D4. However, the same have not been proved by leading any primary evidence and thus remain unproved and cannot be looked into. The defendant has also been unable to elicit any admissions from the plaintiff during his crossexamination. No other evidence has been led by the defendant to show his entitlement in the suit property after 01.10.2011. Rather during his crossexamination, he has himself admitted that after 01.10.2011 he is residing in the suit property without any authority. Accordingly, as the defendant has not been able to prove his defence this issue is decided in favour of the plaintiff and against the defendant.
Issue No.5: Whether the plaintiff is entitled to the relief of recovery for arrears of electricity charges as prayed for in prayer C of the plaint?
34. The onus to prove this issue was on the plaintiff. PW1 has Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 18 of 22 deposed in Ex. PW1/A that in lieu of loan amount of Rs. 40,000/ the plaintiff would give permissive user license to the defendant for a period of five years w.e.f. 01.10.2006 to 01.10.2011 and will occupy the ground floor and first floor for period of five years. It was mutually agreed that electricity bill would be paid by the defendant. PW1 has further deposed that the defendant has not cleared the electricity charges amounting to Rs. 6,430/. No questions were put to PW1 in respect of the electricity till during his crossexamination and thus the testimony being unrebutted is deemed to be admitted by the defendant. Even in the written statement, the defendant has not specifically denied his liability to clear the arrears of electricity charges. In these circumstances, as the defendant has not disputed his liability to pay the arrears of electricity charges, the liability of the defendant to pay the same is deemed to be admitted. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Issue No.6: Whether the plaintiff is entitled to the relief of damages? If so, for what period and at what rate?
35. The onus to prove this issue was on the plaintiff as the plaintiff has claimed damages from the defendant. The plaintiff has not specified the period from which he claims the damages. PW1 has Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 19 of 22 deposed in Ex. PW1/A, that by withholding the premises after the expiry of the period of five years on 01.10.2011, the defendant is causing damage to the plaintiff @ Rs. 2,500/ per month which is the rent the plaintiff would have earned being the prevalent rate of rent in the market. No questions were put to PW1 in respect of the same during his cross examination and thus the testimony is deemed to be admitted by the defendant. On the other hand, DW1 has deposed during his cross examination that on date the suit property if given on rent would fetch rent of Rs.1,000/ per month excluding electricity charges. Thus, from the evidence on record, the plaintiff has been able to prove the prevelant rate of rent in the market to be Rs. 1,000/ per month. As discussed earlier, the defendant has admitted that he is residing in the premises after 01.10.2011 without any authority. Accordingly this issue is decided in favour of the plaintiff and against the defendant and the plaintiff is entitled to damages @Rs.1000/ per month from 01.10.2011 till the date of handing over of the possession of the suit premises to the plaintiff subject to payment of court fees thereon.
Relief:
36. In view of my findings on issue no. 1 to 7, the suit of the Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 20 of 22 plaintiff is decreed and the following reliefs are granted to the plaintiff against the defendant:
● a decree of permanent injunction against creation of third party interest in the suit property bearing no.L2/864, Gali No.11, Sangam Vihar, New Delhi62 is passed in favour of the plaintiff and against the defendant;
● a decree of mandatory injunction is passed in favour of the plaintiff and against the defendant for vacation of the property bearing no.L2/864, Gali No.11, Sangam Vihar, New Delhi62 as per the site plan by the defendant and handing over of the same to the plaintiff;
● a decree for recovery of Rs.6430/ is passed in favour of the plaintiff and against the defendant towards arrears of electricity charges;
● The plaintiff is also awarded damages @ Rs. 1,000/ per month w.e.f. 01.10.2011 till the date of handing over of the possession of the suit premises to the plaintiff subject to payment of court fees thereon.
37. Parties to bear their own costs. Decree Sheet be prepared Civil Suit No.366/11 Sh. Kalu Ram Vs. Sh. Ramesh Page 21 of 22 accordingly.
38. File be consigned to the Record Room after necessary compliance.
Announced in the Open Court (Pooja Gupta)
On 29.08.2013 Civil Judge 03(South District)
New Delhi
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