Delhi District Court
Smt. Kanta Devi vs Sh. Raj Dutt Pandey on 31 October, 2018
IN THE COURT OF JSCCASCJGJ, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 7049/2016
Smt. Kanta Devi
W/o Sh. Chhotey Lal,
R/o 5/476, Trilok Puri,
Delhi110091. ... Plaintiff
Versus
Sh. Raj Dutt Pandey
S/o Sh. Siya Ram Pandey,
R/o 4/2, Block 4,
Trilok Puri, Delhi110091. ... Defendant
SUIT FOR POSSESSION, PERMANENT
PROHIBITORY INJUNCTION, RECOVERY OF
RENT AND MESNE PROFITS/DAMAGES
DATE OF INSTITUTION : 08.10.2015
DATE OF FINAL ARGUMENTS : 04.09.2018
DATE OF DECISION : 31.10.2018
JUDGMENT
1. The plaintiff, a landlord has filed this suit against the defendant, a tenant, seeking four reliefs viz. (a) recovery of possession of tenanted premises, (b) a permanent prohibitory injunction, (c) recovery of arrears of rent of Rs.27,000/, (d) recovery of mesne profits/damages at the rate of Rs.2000/ per day and (e) recovery of electricity dues etc. The exact prayer made by the plaintiff, in the plaint of this suit, is reproduced below: "It is, therefore, most respectfully, prayed that this Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.1 of 19 Hon'ble court may kindly be pleased to:
1. Pass a decree of possession in favour of the plaintiff and against the defendant thereby directing the defendant, his associates, agents, successors, attorneys, legal heirs, representatives etc. etc. to vacate and handover the peaceful, physical and vacant possession of the suit property i.e. first and second floor of property bearing no. 4/02, Block4, Trilok Puri, Delhi 91 measuring area 22.5 Sq. Yds., with fitted electricity connection in running conditions which specifically shown in red colour in the site plan attached.
2. Pass a decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, their associates, agents, successors, attorneys, legal heirs, representatives etc. etc. from selling, transferring, alienating or part with the possession of the suit property i.e. 4/02, Block4, Trilok Puri, Delhi 91 measuring area 22.5 Sq. Yds., with fitted electricity connection in running conditions which specifically shown in red colour in the site plan attached.
3. Pass a decree for recovery of rent and damage in favour of the plaintiff and against the defendant Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.2 of 19 thereby directing the defendant, their associates, agents, successors, attorneys, legal heirs, representatives etc. etc. to pay a sum of Rs.27,000/ for rent of tenanted premises from May 2015 to October 2015 and further rent till vacation of tenanted premises and, damages to the plaintiff w.e.f. 22/09/2015 @ Rs. 2000/ per day till vacation of tenanted premises for the illegal and unauthorized use and occupation of the suit property by the defendant.
4. Pass a decree for recovery of Bills of Electricity in favour of the plaintiff and against the defendant thereby directing the defendant, their associates, agents, successors, attorneys, legal heirs, representatives etc. etc. to pay the Bills of Electricity and Water Bills from March 2015 till Vacation of tenanted premises.
5. Cost of the suit may also be awarded in favour of the plaintiff and against the defendant."
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint of this suit that the plaintiff is the owner/landlady qua the first floor and second floor of property no. 4/02, Block4, Trilok Puri, Delhi110091, as shown in red colour in the site plan filed along with the plaint (henceforth 'tenanted premises'); that the plaintiff had inducted the defendant as a tenant qua the tenanted Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.3 of 19 premises, for a period of 11 months w.e.f. 02.03.2015, vide registered rent agreement dated 04.03.2015; that as per the said rent agreement, the rent payable by the defendant qua the tenanted premises was fixed at Rs.4500/ per month, excluding electricity and water charges; that the defendant had not paid rent and electricity charges to the plaintiff w.e.f. May 2015; that on account of such conduct of the defendant, the plaintiff had served legal notice dated 17.07.2015 upon the defendant, interalia asking the defendant to vacate the tenanted premises, within two months of service of the said legal notice and to pay arrears of rent and electricity charges and that despite service of the legal notice dated 17.07.2015, the defendant had neither vacated the tenanted premises nor paid the arrears of rent to the plaintiff and therefore, the plaintiff is entitled to all the reliefs, sought by way of this suit.
3. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing his written statement. In order to contest this suit, the defendant has interalia pleaded in his written statement that the defendant is the tenant of the plaintiff only qua the second floor of property no. 4/02, Block4, Trilok Puri, Delhi110091, since 20082009; that the jurisdiction of this Court to entertain this suit is hit by Section 50 of the Delhi Rent Control Act, 1958 (henceforth the 'DRC Act, 1958') because the rent payable by the defendant qua the second floor of property no. 4/02, Block4, Trilok Puri, Delhi110091, is only Rs.1000/ per month, excluding electricity and water charges; that the brother of the defendant is the tenant of the plaintiff qua the first floor of property no. 4/02, Block4, Trilok Puri, Delhi110091; that the Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.4 of 19 signatures of the defendant on the registered rent agreement dated 04.03.2015, were fraudulently obtained by the plaintiff, by informing the defendant that he is signing, as as witness, a family settlement made interse the plaintiff, her husband and her brother in law; that after gaining knowledge about the registered rent agreement dated 04.03.2015, the defendant has lodged a complaint at PS Kalyan Puri vide DD No.23B dated 04.05.2016 and the defendant will file a separate suit for declaration of the registered rent agreement dated 04.03.2015, as null and void; that the defendant had deposited rent qua the second floor of property no. 4/02, Block4, Trilok Puri, Delhi110091, for June, July and August, 2015, by way of a petition filed under Section 27 of the DRC Act, 1958, in the Court of Sh. S.K. Arora, the then Ld. Rent Controller, East District, KKD Courts, Delhi and that the defendant had duly replied to the legal notice dated 17.07.2015 and sought a copy of the registered rent agreement dated 04.03.2015, from the plaintiff but instead of supplying a copy of the said rent agreement, the plaintiff has filed this suit against the defendant.
4. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 27.05.2014: "1. Whether the plaintiff is entitled for the relief of Possession as prayed for ? OPP
2. Whether the plaintiff is entitled for the relief of Permanent injunction as prayed for ? OPP
3. Whether the plaintiff is entitled for recovery of Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.5 of 19 arrears of rent for the period w.e.f. May 2015 to October 2015 ? OPP
4. Whether the plaintiff is entitled for the recovery of mesne profits ? If yes, at what rate and for what period ? OPP
5. Whether the plaintiff is entitled for recovery of electricity and water charges w.e.f. March 2015 till the date of vacation of tenanted premises ? OPP
6. Whether the rate of the suit premises is Rs.1000/ and hence suit is barred under Section 50 of DRC Act ? OPD
7. Whether the suit property only comprises second floor of property bearing no.4/2, Trilok Puri, Delhi110091 ? OPD
8. Relief, if any."
5. During the trial of this suit, three witnesses viz. PW1 Smt. Kanta Devi, PW2 Sh. Shakti Singh and PW3 Sh. Chottey Lal were examined in support of the case of the plaintiff and two witnesses viz. DW1 Sh. Raj Dutt Pandey and DW2 Sh. Govind Narayan were examined in support of the case of the defendant. The testimonies of the aforesaid witnesses are not being discussed, at this stage of this judgment, for the sake of brevity.
7. In order to adjudicate upon this suit, I had heard Sh. Hari Shankar, Ld. Advocate for the plaintiff and Sh. Umesh Gupta, Ld. Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.6 of 19 Advocate for the defendant, on 04.09.2018. The issue wise findings, in this case are as follows:
ISSUES NO.6 AND 78. In exercise of power under Order XIV Rule 5 of CPC, 1098, both these issues are amended and reframed as under:
"6. Whether the rate of rent qua the tenanted premises is only Rs.1000/ and as a consequence thereof, the jurisdiction of this Court to entertain this suit is hit by Section 50 of the DRC Act, 1958? OPD
7. Whether the defendant is the tenant of the plaintiff only qua the second floor of property no.4/02, Block 4, Trilok Puri, Delhi110091?OPD"
9. In respect of both these issues, the case of the defendant is that he is the tenant of the plaintiff, only qua the second floor of property no.4/02, Block4, Trilok Puri, Delhi110091, at a rent of Rs.1000/ per month and as a consequence thereof, the jurisdiction of this Court to entertain this suit, is hit by Section 50 of the DRC Act, 1958. Per contra, the case of the plaintiff is that as per the registered rent agreement dated 02.05.2015, the defendant is a tenant of the plaintiff qua the first floor and second floor of property no.4/02, Block4, Trilok Puri, Delhi110091 at a rent of Rs.4500/ per month and as a consequence thereof, the jurisdiction of this Court to entertain this suit is not hit by Section 50 of the DRC Act, 1958.
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10. In order to prove his case qua these issues, the defendant has examined himself as DW1 Sh. Raj Dutt Pandey. During examination in chief, DW1 Sh. Raj Dutt Pandey has interalia deposed that he is a tenant of the plaintiff qua the second floor of property no.4/02, Block4, Trilok Puri, Delhi110091 since 20082009; that the rate of rent qua the second floor of property no.4/02, Block4, Trilok Puri, Delhi110091 is Rs.1000/ per month; that his brother is the tenant of the plaintiff qua the first floor of property no.4/02, Block4, Trilok Puri, Delhi110091 and that the plaintiff had obtained his signatures on the registered rent agreement dated 04.03.2015, Ex.PW1/2 by fraudulently informing him that he is signing, as a witness, a family settlement made interse the plaintiff, her husband and her brotherinlaw. During cross examination, DW1 Sh. Raj Dutt Pandey has interalia deposed that his complaint dated 04.05.2016 qua the registered rent agreement dated 04.03.2015, Ex.PW1/2 is genuine and that he had studied English from 6 th standard onwards but he cannot properly read the English language.
11. In order to prove her case qua these issues, the plaintiff has examined herself as PW1 Smt. Kanta Devi and her husband as PW3 Sh. Chhotey Lal.
12. During examination in chief, the plaintiff viz. PW1 Smt. Kanta Devi has interalia deposed that the defendant was inducted as a tenant qua the first floor and second floor of property no.4/02, Block4, Trilok Puri, Delhi110091, vide registered rent agreement dated 04.03.2015, Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.8 of 19 Ex.PW1/2 at a monthly rent of Rs.4500/. During cross examination, PW1 Smt. Kanta Devi has interalia deposed that earlier also, the defendant was residing at the first floor and second floor of property no.4/02, Block4, Trilok Puri, Delhi110091, as a tenant; that on account of marriage of her elder daughter, the defendant had vacated the first floor and second floor of property no.4/02, Block4, Trilok Puri, Delhi 110091, in December 2014, before being reinducted as a tenant vide registered rent agreement dated 04.03.2015, Ex.PW1/2; that the brother of the defendant is residing along with the defendant but only the defendant is the tenant qua the first floor and second floor of the property no.4/02, Block4, Trilok Puri, Delhi110091; that the execution of the rent agreement dated 04.03.2015, Ex.PW1/2 was witnessed by Sh. Mohar Pal and Sh. Jai Ram; that Sh. Jai Ram is related to the defendant and that she had neither met Sh. Jai Ram before execution of the registered rent agreement dated 04.03.2015 nor met Sh. Jai Ram, after execution of the registered rent agreement dated 04.03.2015, Ex.PW1/2.
13. During examination in chief, PW2 Sh. Chhotey Lal has inter alia deposed that the defendant is the tenant of the plaintiff qua the first floor and second floor of property no.4/02, Block4, Trilok Puri, Delhi 110091. During cross examination, PW2 Sh. Chhotey Lal has interalia deposed that the first floor and second floor of property no.4/02, Block4, Trilok Puri, Delhi110091 were rented out to the defendant for the first time in the last month of 2009 at a monthly rent of Rs.4000/; that on account of marriage of his daughter, the defendant had vacated the first Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.9 of 19 floor and second floor of property no.4/02, Block4, Trilok Puri, Delhi 110091, in 2014, before being reinducted as a tenant vide registered rent agreement dated 04.03.2015, Ex.PW1/2.
14. Upon examining the probative value of the aforesaid competing evidence lead by the parties qua this issue, I find that both these issues are liable to be decided in favour of the plaintiff and against the defendant because of multiple reasons. Firstly, both these issues are liable to be decided in favour of the plaintiff and against the defendant because in accordance with the law laid down in Bhupender Jit Singh v Sonu Kumar, 2017 SCC OnLine Del 1110611, it was the duty of the defendant to seek cancellation of the registered rent agreement dated 04.03.2015, Ex.PW1/2, either by filing a separate suit or by filing a counter claim and having not done so, the defendant cannot wriggle out of the liabilities arising from the registered rent agreement dated 04.03.2015, Ex.PW1/2.
15. Secondly, both these issues are liable to be decided in favour of the plaintiff and against the defendant because even if it is assumed that only by way of defence, as pleaded in the written statement of this suit, the defendant can wriggle out of the liabilities arising from the registered rent agreement dated 04.03.2015, Ex.PW1/2, the defendant has actually not lead any credible evidence to prove to this Court that the 1 In the said judgment, the Hon'ble High Court of Delhi, while dealing with similar facts and circumstances, has applied the law laid down in Gorakh Nath Dubei v Hari Narain Singh, (1973) 2 SCC 535 and granted the relief of possession to the plaintiff/landlord on the premise that till the defendant/tenant does not succeed in the challenge qua the registered rent agreement, the plaintiff/landlord cannot be denied the relief of possession.
Civil Suit No. 7049/2016Smt. Kanta Devi v Raj Dutt Pandey Page No.10 of 19 registered rent agreement dated 04.03.2015, Ex.PW1/2 is vitiated by the malaise of fraud or misrepresentation. In this regard, it is relevant to note
(a) that apart from the self serving statement of the defendant viz. DW1 Sh. Raj Dutt Pandey, there is no evidence before this Court to believe that the signatures of the defendant on the registered rent agreement dated 04.03.2015, Ex.PW1/2 were fraudulently obtained by the plaintiff, by informing the defendant that he is signing, as a witness, a family settlement made interse the plaintiff, her husband and her brother in law; (b) that despite availability of the addresses of the witnesses qua the registered rent agreement dated 04.03.2015, Ex.PW1/2 viz. Sh. Mohar Pal Singh and Sh. Jai Ram, on the registered rent agreement dated 04.03.2015, Ex.PW1/2, the defendant has not even attempted to examine the said witnesses to prove his version that the registered rent agreement dated 04.03.2015, Ex.PW1/2 was actually supposed to be some family settlement interse the plaintiff, her husband and her brother in law and (c) that the defendant having elementary knowledge of English language1, can not be believed to have not understood that he is signing the registered rent agreement dated 04.03.2015, Ex.PW1/2, as a party and not as a witness.
16. Thirdly, both these issues are liable to be decided in favour of the plaintiff and against the defendant because the defendant has not even examined his brother to prove to this Court that he is the tenant of the plaintiff only qua the second floor of property no. 4/02, Block4, Trilok 1 The factum of defendant having elementary knowledge of English, is deducible from cross examination of the defendant viz. DW1 Sh. Raj Dutt Pandey, where he has admitted that he had studied English language 6 th standard onwards.
Civil Suit No. 7049/2016Smt. Kanta Devi v Raj Dutt Pandey Page No.11 of 19 Puri, Delhi 110092 and his brother is the tenant of the plaintiff qua the first floor of property no. 4/02, Block4, Trilok Puri, Delhi 110092.
17. Lastly, both these issues are liable to be decided in favour of the plaintiff and against the defendant because defendant has not proved on record his income tax returns 1 or rent receipts2 of the relevant years to prove to this Court that he is the tenant of the plaintiff only qua the second floor of property no. 4/02, Block4, Trilok Puri, Delhi 110092, at a rent of Rs. 1,000/ per month.
18. In view of the aforesaid reasons, both these issues are decided in favour of the plaintiff and against the defendant. It is held that the defendant is the tenant of plaintiff qua the first floor and second floor of property no. 4/02, Block4, Trilok Puri, Delhi 110092 at a monthly rent of Rs. 4500/ and as a consequence thereof, the jurisdiction of this Court to entertain this suit is not hit by Section 50 of the DRC Act, 1958.
ISSUE NO.1
19. In respect of this issue, the case of the plaintiff is that she is entitled to obtain the possession of the first floor and second floor of property no. 4/02, Block4, Trilok Puri, Delhi 110092 (henceforth 1 In this regard, it is relevant to note that ordinarily, a tenant shows the rent paid by him qua his residence, in his income tax returns, in order to avail tax benefits. 2 In this regard, it is relevant to note that it does not lie in the mouth of the defendant to contend that the plaintiff had never issued rent receipts, as mandated by Section 26 of the DRC Act, 1958 because if that was the case, the defendant should have taken recourse to the provisions of Section 27 of DRC Act 1958 and deposited the rent before concerned Rent Controller.
Civil Suit No. 7049/2016Smt. Kanta Devi v Raj Dutt Pandey Page No.12 of 19 'tenanted premises') from the defendant because she had inducted the defendant as a tenant qua the tenanted premises, on the basis of the registered rent agreement dated 04.03.2015 and because as per clause 11 of the registered rent agreement dated 04.03.2015 she had determined the tenancy of the defendant qua the tenanted premises by serving legal notice dated 17.07.2015, upon the defendant. Per contra, the case of the defendant is that plaintiff is not entitled to obtain the possession of the tenanted premises from him because instead of inducting the defendant as a tenant qua the tenanted premises, by way of registered rent agreement dated 04.03.2015, Ex.PW1/2, the plaintiff had inducted the defendant as a tenant only qua the second floor of property no. 4/02, Block4, Trilok Puri, Delhi 110091, in the year 2008, at a monthly rent of Rs. 1,000/ and because as a consequence thereof, the jurisdiction of this Court to entertain this suit is hit by Section 50 of the DRC Act, 1958.
20. Since, while deciding issues no. 6 and 7, this Court has already rejected the aforesaid defenses of the defendant and concluded that the defendant was inducted as a tenant qua the tenanted premises at a monthly rent of Rs. 4,500/, on the basis of the registered rent agreement dated 04.03.2015, Ex.PW1/2 and since, as per clause 11 of of the registered rent agreement dated 04.03.2015, Ex.PW1/2, the plaintiff has duly determined the tenancy of the defendant qua the tenanted premises by serving legal notice dated 17.07.2015, Ex.PW1/4 upon the defendant, this issue is decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover the Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.13 of 19 possession of the tenanted premises from the defendant.
ISSUE NO.2
21. This issue is decided in favour of the defendant and against the plaintiff because in the plaint of this suit, the plaintiff has nowhere pleaded that the defendant had ever threatened to sell, transfer or create any form of third party rights, in respect of the tenanted premises and because in her evidence affidavit, Ex.P1, the plaintiff has not made any deposition regarding any threat from the defendant qua selling, transfer or creation of any form of third party rights, in respect of the suit property. It is held that the plaintiff is not entitled to the relief of permanent prohibitory injunction, as prayed for.
ISSUE NO.3
22. This issue is partly decided in favour of the plaintiff and against the defendant because it is an admitted position interse the parties that the defendant had not paid rent to the plaintiff with effect from 01.05.2015; because as per the registered rent agreement dated 04.03.2015, Ex.PW1/2, which, as aforesaid, binds the defendant, the defendant was liable to pay rent to the plaintiff at the rate of Rs. 4,500/ per month, till the determination of his tenancy qua the tenanted premises by service of legal notice dated 17.07.2015, Ex.PW1/4; because the legal notice dated 17.07.2015, Ex.PW1/4 gives the impression that the tenancy of the defendant qua the tenanted premises Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.14 of 19 had definitely determined, latest by 30.09.2015 and because once this Court has concluded that the landlordtenant relationship interse the parties, is not governed by the DRC Act, 1958, it is the duty of the defendant to collect back the rent, deposited before the concerned Rent Controller. It is held that the plaintiff is entitled to recover from the defendant, arrears of rent for the period May 2015 to September 2015, at the rate of Rs. 4500/ per month, totaling to Rs. 22,500/.
ISSUE NO.4
23. In respect of this issue, apparently1 the case of the plaintiff is that she is entitled to recover mesne profits/damages at the rate of Rs.2,000/ per day from the defendant, w.e.f. 01.10.2015 because despite determination of the tenancy of the defendant qua the tenanted premises, by service of legal notice dated 17.07.2015, the defendant had not handed over the possession of the tenanted premises to the plaintiff, latest by 01.10.2015 and because clause 21 of the registered rent agreement dated 04.03.2015, stipulates that the defendant shall be liable to pay mesne profits/damages at the rate of Rs. 2,000/ per day to the plaintiff. Per contra, the case of defendant is that he is not liable to pay any mesne profits/damages to the plaintiff.
1 In this regard, a specific query was put to the Ld. Advocate for the plaintiff, on 04.09.2018, regarding the exact date, when, according to the plaintiff, the tenancy of the defendant qua the tenanted premises had determined. In response thereto, no response was given by the Ld. Advocate for the plaintiff. Therefore, the period of two months from the service of legal notice dated 17.07.2015 upon the defendant, has been assumed to have expired on 30.09.2015 and consequently, the tenancy of the defendant qua the tenanted premises has been assumed to have determined on 30.09.2015.
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24. In view of the finding given qua issue no.3, it is clear that the plaintiff is entitled to recover mesne profits/damages from the defendant, w.e.f. 01.10.2015. Therefore, the only aspect left for adjudication qua this issue is whether the plaintiff is entitled to recover the said mesne profits/damages from the defendant, at the rate of Rs.2,000/ per day. In respect of the said aspect, I find that (a) in view of the law laid down in M.C. Aggarwal HUF v Sahara India & Ors., 183 (2011) DLT 105 1 and (b) the failure of the plaintiff to prove that on account of nonvacation of the tenanted premises by the defendant, by 01.10.2015, the plaintiff has actually suffered losses at the rate of Rs. 2,000/ per day, the plaintiff cannot be held to be entitled to recover the said mesne profits/damages from the defendant, at the rate of Rs. 2,000/ per day.
25. Further I find in view of the law laid down in M.C. Aggarwal HUF v Sahara India & Ors., 183 (2011) DLT 105, State Bank of India v Dr. Meera Luthra & Ors., 2017 SCC OnLine Del 9513 and M/s. Basant & Co. v M/s. Osram India Pvt. Ltd., 2018 SCC OnLine Del 7776 2, the plaintiff can only be said to be entitled to recover from the defendant mesne profits/damages at the rate of Rs.5,175/ per month for the period, 01.10.2015 to 30.09.2016; mesne profits/damages at the rate of Rs.5,951/per month for the period, 01.10.2016 to 30.10.2017; mesne 1 In the said judgment, it has been held by the Hon'ble High Court of Delhi that the mesne profits/damages, can only be granted on the basis of actual loss suffered by the landlord.
2 In the said judgments, it has been held by the Hon'ble High Court of Delhi that in cases where no credible evidence is lead by the parties regarding the claim of mesne profits/damages, the Courts can ordinarily grant mesne profits/damages with 15% annual increase in the admitted/proved rent.
Civil Suit No. 7049/2016Smt. Kanta Devi v Raj Dutt Pandey Page No.16 of 19 profits/damages at the rate of Rs.6,844/ per month for the period, 01.10.2017 to 30.09.2018 and mesne profits/damages at the rate of Rs.7,871/ per month from 01.10.2018 till the handing over of the tenanted premises by the defendant to the plaintiff, along with simple interest at the rate of 12% per annum.
26. In view of the aforesaid, this issue is partly decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant mesne profits/damages at the rate of Rs.5,175/ per month for the period, 01.10.2015 to 30.09.2016; mesne profits/damages at the rate of Rs.5,951/per month for the period, 01.10.2016 to 30.10.2017; mesne profits/damages at the rate of Rs.6,844/ per month for the period, 01.10.2017 to 30.09.2018 and mesne profits/damages at the rate of Rs.7,871/ per month from 01.10.2018 till the handing over of the tenanted premises by the defendant to the plaintiff, along with simple interest at the rate of 12% per annum.
ISSUE NO.5
27. This issue is decided in favour of the defendant and against the plaintiff because in the plaint of the suit, the plaintiff has neither identified the exact amount of money, which was payable by the defendant, as electricity and water charges, on the date of filing of this suit, on 08.10.2015 nor paid the appropriate court fees thereof; because in order to recover electricity and water charges payable by the Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.17 of 19 defendant, the plaintiff was required to properly plead and prove before this Court the exact amount of money which was payable by the defendant, as electricity and water charges, on the date of filing of this suit, on 08.010.2015 and because the plaintiff has failed to prove before this Court, as to how much component of water and electricity bills, Ex.PW1/3(colly) was/is payable by the defendant and how much component of water and electricity bills Ex.PW3 (colly), was/is liable to be paid by her nephew, who, as per the plaintiff, resides at the ground floor of property no. 4/02, Block4, Trilok Puri, Delhi110091.
RELIEF
28. As a net result of the aforesaid findings qua the issues framed in this suit, on 27.05.2014, this suit is partly decreed in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant, (a) possession of first floor and second floor of property no. 4/02, Block4, Trilok Puri, Delhi110091, as shown in red colour in the site plan, Ex.PW1/1; (b) arrears of rent for the period, May 2015 to September 2015, at the rate of Rs. 4500/ per month, totaling to Rs. 22,500/ and (c) mesne profits/damages at the rate of Rs.5,175/ per month for the period, 01.10.2015 to 30.09.2016; mesne profits/damages at the rate of Rs.5,951/per month for the period, 01.10.2016 to 30.10.2017; mesne profits/damages at the rate of Rs.6,844/ per month for the period, 01.10.2017 to 30.09.2018 and mesne profits/damages at the rate of Rs.7,871/ per month from 01.10.2018 till the handing over of the tenanted premises by the Civil Suit No. 7049/2016 Smt. Kanta Devi v Raj Dutt Pandey Page No.18 of 19 defendant to the plaintiff, along with simple interest at the rate of 12% per annum.
29. Before parting with this judgment, it is clarified that the payment of Rs. 1.25 lakhs, allegedly made by the defendant to the husband of the plaintiff has not been factored in this judgment because no such payment has been specifically pleaded in the written statement of the defendant and because even if such a payment was made by the defendant to the husband of plaintiff, it does not confer any right upon the defendant, to continue to stay as a tenant at the suit property, without the consent of the plaintiff1. Also, it is clarified that the interest awarded to the plaintiff shall be calculated as per the formula given in the judgment of the Hon'ble High Court of Delhi in M/s. Basant & Co. v M/s. Osram India Pvt. Ltd., 2018 SCC OnLine Del 7776.
30. The Reader shall prepare the decree sheet as per this judgment, after supply of additional courtfees by the plaintiff. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
JAY Digitally signed by JAY THAREJA
Location: East District
Karkardooma Courts, Delhi
THAREJA Date: 2018.10.31 16:17:52
+0530
Announced in open Court (Jay Thareja)
today on 31.10.2018 JSCC/ASCJ/GJ/EAST DISTRICT
Karkardooma Courts/Delhi
1 The said view is premised (a) on the fact that as per Indian Law, a tenant can have a secured tenancy of more than 11 months, only by way of a registered lease deed and not by way of payment of advance money/rent to the landlord and (b) on the fact that as per Indian Law, a landlord can terminate a month to month tenancy by simply serving a notice as per Section 106 of Transfer of Property Act, 1882, upon the tenant.
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