Delhi District Court
Smt. Pushpa Devi vs Harminder Singh on 30 May, 2017
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
DISTRICT JUDGE8 (CENTRAL), TIS HAZARI, DELHI
Suit No. 468/2014 (New No. 16767/2016)
Unique ID No.: 02401C0164032011
In the matter of:
Smt. Pushpa Devi,
W/o Shri Babu Lal,
R/o 2nd Floor, 52/4585, Regarpura,
Karol Bagh, New Delhi. ............Plaintiff
VERSUS
Harminder Singh,
S/o Late Charan Jeet Singh,
H5116, Gali No. 1, First Floor,
Krishna Nagar, Karol Bagh,
New Delhi. ...........Defendant
Date of institution : 8.4.2011.
Date of Reserving judgment : 15.5.2017.
Date of pronouncement : 30.5.2017.
For Plaintiff : Mr. Subhash C. Buttan, Advocate.
For Defendant : Mr. Devinder Chowdhary, Advocate.
Suit No. 468/2014 Page no. 1 of 18
JUDGMENT :
This is a suit for recovery of possession of property
bearing no. 5116, Gali No. 1, First Floor, Krishna Nagar, Karol Bagh,
New Delhi (hereinafter referred to as 'the suit property'); recovery of
damages in a sum of Rs.5,02,000/ with future and pendente lite
damages; and mandatory injunction instituted by plaintiff Puspa Devi
against defendant Harminder Singh.
2. Facts, as per the plaintiff's version, are that the plaintiff is
the owner of the suit property which was purchased by her in the year
2007 from its erstwhile owner Smt. Anjali Garg; that the suit property
comprises of three room sets including two attached toilets and
bathrooms, kitchen and fitting fixture thereto; that the plaintiff through
her son and duly authorized attorney Kailash Soni inducted the
defendant as tenant at a monthly rent of Rs.8,500/ for eleven months
from 05.12.2007 to 04.11.2008; that the defendant had also paid
Rs.50,000/ as security towards the rent and undertaking in terms of
normal rule of tenancy; that since very beginning of the tenancy the
intention of the defendant turned mala fide and till the institution of
the suit the defendant never paid rent to the plaintiff or any other
family member of the plaintiff; that the plaintiff, after making
adjustment of security amount of Rs.50,000/ towards the rent for six
months, had raised the demand for rent from the defendant, but he
Suit No. 468/2014 Page no. 2 of 18
failed to oblige the mandate of the agreement and breached the same;
that the son of the plaintiff, in the month of December, 2008, after
expiry of the tenancy period, had orally demanded the plaintiff to
vacate the suit property but the defendant did not vacate the suit
property; that the plaintiff had purchased the suit property for her own
residential purpose in future as she alongwith her family members was
living in another property at that time; that after purchase of the suit
property the family member of the plaintiff had started searching
another property and in the meantime she had rented out the property
to the defendant on agreed terms and conditions; that after renting the
suit property to the defendant, talked with the intended seller of the
other property for which the family member of the plaintiff were
intended to purchase had got failed and the plaintiff was forced by the
defendant to live into rented house where Rs.12,500/ is being payable
by the plaintiff and her family members; that in February, 2009, the
plaintiff through her son contacted the defendant for vacation of the
suit property but the defendant refused to do so; that thereafter in the
month of June, 2009 the plaintiff approached the defendant for
vacation of suit property and payment of due rent and damages and at
that time the plaintiff was mocked at by the defendant in presence of
other persons present at the suit property; that the plaintiff issued a
legal notice dated 02.2.2011 to the defendant in which she claimed
rent and Rs.15,000/ per month as damages for illegal occupation and
Suit No. 468/2014 Page no. 3 of 18
usage and the defendant having knowledge about notice of vacation,
intentionally and deliberately made false statement to postal official
that he was not residing at the given address. It is further stated in the
plaint that due to the acts of the defendant a cause of action arose in
favour of the plaintiff leading upto the institution of the present suit.
3. The suit is contested by the defendant by way of a written
statement of defence wherein preliminary objections are taken to the
effect that the suit merits rejection under rule 11 of Order VII of the
Code of Civil Procedure, 1908 (CPC) as one Kailash Soni, who had
represented himself to be the landlord and owner of the suit property
had entered into an oral agreement for sale to dispose of the suit
property for a total sale consideration of Rs.12,00,000/ and had
accepted Rs.5,00,000/ as advance money against the total sale
consideration and balance amount of Rs.7,00,000/ was to be paid
after three months at the time of registration of the sale deed and the
said Kailash Soni had also adjusted Rs.50,000/ which was already
lying with him as security given at the time of taking the suit property
on rent in the year 2007; that after expiry of three months period as
mentioned in the bayana receipt, the said Kailash Soni started
avoiding the defendant on one pretext or other and ultimately got filed
the present suit; that the suit merits dismissal as it is in doubt as to
whether the property is owned by the plaintiff or by Kailash Soni; that
it was Kailash Soni who had entered into an agreement dated
Suit No. 468/2014 Page no. 4 of 18
06.12.2007 and had later on entered into an oral agreement to sell on
11.12.2010; that the suit warrants dismissal for nonjoinder of
necessary party as Kailash Soni had not been impleaded as a necessary
party to the proceedings in spite of the fact that he was the person who
had purported himself to be the owner of the suit property at the time
of the execution of the rent agreement and at the time of entering into
oral agreement for sale; that the suit is liable to be dismissed as the
rent agreement dated 06.12.2007 has been tampered with by the said
Kailash Soni as per his convenience as he had taken signatures of the
defendant on certain blank papers as condition at the time of induction
of the defendant as tenant; that the suit based on rent agreement dated
06.12.2007 is liable to be dismissed and the said document is liable to
be impounded as per the provisions of the Indian Stamp Act being
deficient in stamp duty; that the plaintiff has concealed material facts
from this court as the rent of the premises at the time of induction of
the defendant as tenant was worth Rs.4,500/ against Rs.8,500/ as
claimed by the plaintiff; that the suit merits dismissal as no notice has
been served upon the defendant before institution of the present suit,
which is apparently clear on the perusal of the registered envelope that
had returned to the sender; that the suit has not been properly valued
for the purpose of court fee and jurisdiction; that the suit has not been
properly verified as per the rules framed by the Delhi High Court. In
the reply on merits the averments made by the plaintiff in support of
Suit No. 468/2014 Page no. 5 of 18
her claim are disputed and denied and the defence taken by way of
preliminary objections are reiterated and it is stated that the suit may
be dismissed.
4. To the written statement of the defendant, the plaintiff
filed a replication whereby the defence taken by the defendant are
traversed and the averments made in the plaint are reiterated.
5. On the pleadings following issues are framed on
22.2.2012, namely:
1.Whether the suit is not maintainable in view of preliminary objections no. 1 to 3 of the written statement of defendant? OPD
2. Whether the suit is barred for non service of notice of vacation? OPD
3. Whether the plaintiff is entitled for possession of the suit property? OPP
4. Whether the plaintiff is entitled to any damages, if so, in what sum? OPP
5. Whether the plaintiff is entitled to mandatory injunction, as prayed? OPP
6. Relief (s)?
6. After framing of issues, the plaintiff got examined herself as PW1 and during her examination in chief tendered her affidavit Ex.PW1/A alongwith documents Ex.PW1/1 to Ex.PW1/6. The Suit No. 468/2014 Page no. 6 of 18 plaintiff also got examined PW2 Kailash Kumar Soni and PW3 Hem Raj. PW2 Kailash Kumar Soni during his examination tendered his affidavit Ex.PW2/A. All the plaintiff's witnesses have been cross examined by counsel for the defendant.
7. During his evidence the defendant got examined himself as DW1 and during his examination in chief tendered affidavit Ex.DW1/A. After cross examination of the defendant by counsel for the plaintiff his evidence was closed.
8. I have heard Mr. Subhash C. Buttan, Advocate for the plaintiff and Mr. Devinder Chowdhary, Advocate for the defendant and have gone through the material on record carefully. I have also gone through the written arguments filed on behalf of the defendant. My issuewise findings are as follows:
Re: Issue no. 1.
9. The onus of proof qua this issue was on the defendant. Having drawn my attention on the testimonies of PW1 Pushpa Devi, PW2 Kailash Soni, PW3 Hem Raj and DW1 Harminder Singh, documents Ex. PW1/2 to Ex. PW1/6 and the law laid down in Brij Mohan v. Sugra Begum, 1990 (4) SCC 145 and M/s. Pelikan Estates Pvt. Ltd. v. Shri Kamal Pal Singh and others, 113 (2004) DLT 290 it is submitted by counsel for the defendant that there existed no relationship of lessor and lessee between the plaintiff and the defendant. It is further submitted by counsel for the defendant that the Suit No. 468/2014 Page no. 7 of 18 suit property was leased out to the defendant by Kailash Soni, who at the time of leasing out the property represented himself as the owner of the suit property. It is further submitted by counsel for the defendant that after leasing out the suit property, the said Kailash Soni entered into an agreement for sale with the defendant and took Rs.5,00,000/ as advance money. It is further submitted by counsel for the defendant that the said Kailash Soni did not convey the suit property to the plaintiff and by committing forgery prepared document Ex.PW1/4. It is further submitted by counsel for the defendant that the defendant has been occupying the suit property not as a tenant but under agreement for sale with Kailash Soni, who represented himself as owner of the suit property.
10. On the other hand having drawn my attention on the testimonies of PW1 Puspa Devi, PW2 Kailash Soni, PW3 Hem Raj and documents Ex.PW1/4, Ex.PW1/5 and Ex.PW1/6 it is submitted by counsel for the plaintiff that after purchasing the suit property, by way of agreement Ex.PW1/4 the plaintiff, through her son and attorney, leased out the suit property to the defendant at monthly rent of Rs.8,500/ for a period of eleven months. It is further submitted by counsel for the plaintiff that the defendant did not pay any rent to the plaintiff, therefore, Rs.50,000/ deposited by the plaintiff as security deposit was adjusted towards arrears of rent. It is further submitted by counsel for the plaintiff that after passing of eleven months period the Suit No. 468/2014 Page no. 8 of 18 plaintiff asked the defendant to vacate the suit property but he did not vacate the same and also did not pay any rent or occupation charges to the plaintiff. It is further submitted by counsel for the plaintiff that the plaintiff is the owner of the suit property and power of attorney Ex. PW1/3 was executed by her in favour of PW2 Kailash Soni only to lease out the suit property and not to sell out the same.
11. In his written statement the first three preliminary objections taken by the defendant are that the plaint is liable to be rejected as after representing himself as the owner of the property Kailash Soni entered into an oral agreement to sell the suit property in consideration of Rs.12,00,000/ and had accepted Rs.5,00,000/ as advance money and had also adjusted Rs.50,000/ which was lying with him; that it is in doubt as to whether the suit property is owned by the plaintiff or Kailash Soni; and that the suit warrants dismissal for nonjoinder of necessary party as Kailash Soni has not been impleaded as a necessary party. On this issue although, the defendant as DW1 has deposed that an oral agreement was entered into between him and Kailash Soni regarding the suit property but he could not lead any plausible evidence except his oral evidence that such agreement was entered into between him and Kailash Soni. The testimony of the defendant on this aspect, however, is not reliable, for he has made contradictory statements. The defendant as DW1, on 10.02.2016 during his crossexamination deposed that oral agreement with Suit No. 468/2014 Page no. 9 of 18 Kailash Soni was entered on 11.12.2010 in the evening, whereas on other occasion on 02.8.2016, during his crossexamination he deposed that the oral agreement had taken place on 10.12.2010. Even if it is assumed that such agreement was entered into between the defendant and Kailash Soni the same is of no help to the defendant, for such agreement is not binding on the plaintiff and in the face of the provisions of section 53A of the Transfer of Property Act, 1881 on the basis of oral agreement the defendant cannot defend his title.
12. From the testimony of PW1 Pushpa Devi and document Ex.PW1/2 it has been established that the suit property was purchased by the plaintiff from Smt. Anjali Garg on 14.9.2007. From the testimonies of PW1 Pushpa Devi and PW2 Kailash Soni and document Ex.PW1/3 it has also been proved that on 05.12.2007 PW1 Smt. Pushpa Devi executed special power of attorney Ex. PW1/3 in favour of her son Kailash Soni, whereby she authorized him to let out the suit property and to take ancillary action in respect of such letting out of the property.
13. As per the provisions of section 2 of the Powers of Attorney Act, 1882 (Act 7 of 1882) the donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and on seal where sealing is required, by the authority of the owner of the power and every instrument and thing so executed and done, shall be as effectual in law as if it had Suit No. 468/2014 Page no. 10 of 18 been executed or done by the donee of the power in the name, and with the signature and seal of the donor thereof. As already indicated from the testimony of PW1 Pushpa Soni and document Ex. PW1/3 it has been proved that on 05.12.2007 the plaintiff executed power of attorney Ex. PW1/3 in favour of her son Kailash Soni, who on the following day executed rent agreement Ex. PW1/4. In the said rent agreement Ex.PW1/4 he has nowhere claimed that Kailash Soni was the owner of the property in question, and as per the provisions of section 2 of Act 7 of 1882 he was not required to mention that agreement Ex.PW1/4 was being executed by him in capacity of attorney of the plaintiff. Since, PW2 Kailash Soni, while executing agreement Ex.PW1/4 did not act on his own behalf and instead pursuant to Ex.PW1/3 acted on behalf of his mother, therefore, in view of the provisions of chapter X of the Indian Contract Act, 1872 the defence of the defendant that the said Kailash Soni ought to have been made a party to the suit and due to his non joinder the suit must fail is without any force and cannot be accepted. Since, from the testimonies of PW1 Pushpa Devi and PW2 Kailash Soni and documents Ex. PW1/2, Ex. PW1/3 and Ex.PW1/4 it has been proved that the plaintiff is the owner of the suit property which was let out on her behalf by his son by executing agreement Ex.PW1/4 on the basis of power of attorney Ex.PW1/3, therefore, issue no. 1 is decided against the defendant and in favour of the plaintiff.
Suit No. 468/2014 Page no. 11 of 18 Re: Issue no. 2.
14. The onus of proof qua this issue was on the defendant. Having drawn my attention on the testimony of PW1 Pushpa Devi and documents Ex. PW1/5 and Ex. PW1/6 is submitted by counsel for the defendant that the suit is liable to be dismissed as before institution of the suit no notice was served upon the defendant, therefore the suit may be dismissed. On the other hand it is submitted by counsel for the plaintiff that before institution of the suit plaintiff sent a legal notice Ex.PW1/5 to the defendant by registered post but the defendant by manipulation did not receive the same.
15. From the testimonies of PW2 Kailash Soni and PW3 Hem Raj, who witnessed the execution of agreement Ex.PW1/4, it has been proved beyond doubt that on 06.12.2007 the defendant and PW2 Kailash Soni executed agreement Ex.PW1/4. In this regard, in the face of testimony of PW3 Hem Raj who had no ill motive against the defendant, the plea of the defendant that he had only put his signatures on blank papers and did not execute agreement Ex.PW1/4 cannot be accepted.
16. As per the terms of agreement Ex.PW1/4 the agreement was for a period of eleven months commencing from 05.12.2007 and ending on 04.11.2008. Although, in paragraph no. 5 of agreement Ex.PW1/4 it has been mentioned that the tenancy could be extended with the mutual consent of the landlady and the defendant, but there is Suit No. 468/2014 Page no. 12 of 18 no evidence on record to suggest that by such mutual consent the lease between them was ever extended. It has been held by Hon'ble Delhi High Court in judgment dated 25.5.2012 passed in RFA No. 997/2010 entitled Skyland International Pvt. Ltd. v. Kavita P. Lalwani that if the lease is for a fixed term and after passing of such term of lease the same is not extended by the parties then after efflux of time no notice is required to be served by the lessor to the lessee regarding termination of lease. In the present case, PW1 Pushpa Devi and PW2 Kailash Soni in their testimonies have categorically deposed that after taking possession of the suit property the defendant did not pay any rent, and after passing of eleven months period did not vacate the suit property. Thus, after passing of eleven months time as mentioned in the agreement Ex.PW1/4 the lease was not extended between the parties and hence, there was no requirement of serving any notice upon the defendant.
17. Further, from the testimony of PW2 Kailash Soni and documents Ex.PW1/5 and Ex.PW1/6 it has been established that before institution of the suit a notice dated 02.2.2011 was sent by the plaintiff to the defendant by registered post on his correct address, but the said notice could not be delivered to the defendant as the defendant made himself non available for service of such notice. In such situation, it has been held by the Hon'ble Delhi High Court in Skyland International Pvt. Ltd.'s case (supra) that if the lessee avoids Suit No. 468/2014 Page no. 13 of 18 delivery of notice, the notice will be deemed to have been served upon such lessee. In these circumstances it is held that the suit is not barred for non service of notice of vacation. Issue no. 2 is decided against the defendant and in favour of the plaintiff.
Re: Issue no. 3.
18. From the testimonies of PW1 Pushpa Devi, PW2 Kailash Soni and PW3 Hem Raj and contents of Ex.PW1/4 it has been proved that on 06.12.2007 agreement Ex.PW1/4 was executed by the defendant and the son of the plaintiff and as per the terms of the said agreement Ex.PW1/4 from 05.12.2007, at the monthly rent of Rs.8,500/, the suit property was leased out to the defendant for a period of eleven months. From the evidence led by the parties it is also proved that after expiry of lease term no fresh lease was entered into between the parties or any rent was paid by the defendant which was accepted by the plaintiff or her agent. From the evidence on record it is also proved that, although after expiry of lease term the plaintiff was not required to send any notice for vacation of the suit property to the defendant, but she sent such notice by way of registered post which is deemed to have been served upon him. Since, the plaintiff is the owner of the property and the lease period has expired, therefore, she is entitled to recover possession of the suit property from the defendant. The issue no. 3 is decided in favour of the plaintiff and against the defendant.
Suit No. 468/2014 Page no. 14 of 18 Re: Issue no. 4.
19. The onus of proof qua this issue was on the plaintiff. The plaintiff as PW1 deposed that she is entitled to damages at the rate of Rs.15,000/ per month, but she has not led any evidence as to on what basis she becomes entitled for damages at such rate. PW2 Kailash Kumar Soni also during his evidence deposed that the plaintiff is entitled to damages at the rate of Rs.15,000/ per month, but he has also not led evidence indicating that such damages should be paid to the plaintiff. In the absence of any evidence on this aspect of the case by the plaintiff it cannot be held that the plaintiff is entitled for damages at the rate of Rs.15,000/ per month. However, as the defendant, after taking possession of the suit property, did not pay any rent, except a sum of Rs.50,000/ which was otherwise paid as a security, and after expiry of the term of lease did not pay any use and occupation charges, while he was occupying the suit property, therefore, he cannot be absolved from his liability to pay such damages. In the considered opinion of the court, after taking possession of the suit property, unless an agreement was otherwise entered into between the parties, the defendant ought to have paid rent and occupation charges at the rate of Rs.8,500/ per month, as agreed between them while entering into the lease, for a period of three years and thereafter, such occupation charges ought to have been increased at the rate of ten percent after every three years. If use and occupation Suit No. 468/2014 Page no. 15 of 18 charges are so calculated then, besides paying rent at the rate of Rs.8,500/ per month for the period 05.12.2007 to 04.11.2008, the defendant becomes liable to pay use and occupation charges at such rate from 05.11.2008 till 04.12.2010. The defendant further becomes liable to pay use and occupation charges at the rate of Rs.9,350/ per month for the period 05.12.2010 to 04.12.2013 (ten per cent increase on Rs.8,500) and at the rate of Rs.10,285/ for the period 05.12.2013 to 04.11.2016 (ten per cent increase on Rs.9,350/) and at the rate of Rs.11,315/ for the period 5.12.2016 onwards. Issue no. 4 is decided in favour of the plaintiff and against the defendant. Re: Issue no. 5.
20. The plaintiff has also claimed a decree of mandatory injunction against the defendant for directing the defendant to remove his belongings from the suit property. Since, the plaintiff is entitled to get vacant possession of the suit property, therefore, the defendant is under liability to remove his articles and belongings lying on the said property. The plaintiff is entitled to mandatory injunction as sought by her in the plaint. Issue no. 5 is decided in favour of the plaintiff and against the defendant.
Relief
21. In view of my findings on the above mentioned issues the suit of the plaintiff is decreed with costs in following terms, namely:
(a) the plaintiff is found entitled to recover the possession Suit No. 468/2014 Page no. 16 of 18 of property bearing no. 5116, Gali No. 1, First Floor, Krishna Nagar, Karol Bagh, New Delhi as depicted in site plan Ex.PW1/1 from the defendant.
(b) The plaintiff is also found entitled for a decree of mandatory injunction in her favour, and as a result the defendant is directed to remove his belongings from the property bearing no. 5116, Gali No. 1, First Floor, Krishna Nagar, Karol Bagh, New Delhi as depicted in site plan Ex.PW1/1 immediately.
(c) For the period 05.12.2007 till institution of the suit the plaintiff has claimed Rs.5,02,000/ on account of arrears of rent and use and occupation charges, but in view of my findings on issue no. 4 she is not found entitled for the said sum of money. Instead the plaintiff is found entitled to recover only Rs.2,94,335/ from the defendant on account of arrears of rent and use and occupation charges for the said period. The plaintiff is also found entitled to pendente lite interest in the sum of Rs.1,08,510/, that is, interest at the rate of 6% per annum on the said amount of Rs.2,94,335/.
(d) The plaintiff is also found entitled to use and occupation charges at the rate of Rs.9,350/ per month for the period 08.4.2011 to 04.12.2013, thereafter, at the rate of Rs.10,285/ per month for the period 05.12.2013 to 04.12.2016; and thereafter, at the rate of Rs.11,315/ per month from 05.12.2016 till today, that is total amount Rs. 7,34,906/.
Suit No. 468/2014 Page no. 17 of 18
(e) Till the possession of the suit property is obtained by the plaintiff from the defendant, she will also be entitled for use and occupation charges at the rate of Rs.11,315/ per month.
(f) The plaintiff is also found entitled for interest at the rate of 6% per annum on the costs and Rs.11,37,751/, to be paid by the defendant to the plaintiff from this date to the date of realisation.
22. The plaintiff is directed to pay additional court fee on the sum of Rs.5,27,241/ on or before 10.7.2017, and thereafter, decree sheet be prepared accordingly. After compliance file be sent to records.
Pronounced in the open court (Manoj Kumar) on 30th of May, 2017. Additional District Judge8 Central:Tis Hazari Courts: Delhi.
Suit No. 468/2014 Page no. 18 of 18