Delhi District Court
Dr. Versha Sehgal vs Sh. Manjeet Dhaka on 24 May, 2023
IN THE COURT OF MS. GEETANJALI, ADDITIONAL DISTRICT
JUDGE - 05 SOUTH EAST, SAKET COURTS: NEW DELHI
CS DJ No. 207/2019
CNR No. DLSE010016782019
In the matter of :
Dr. Versha Sehgal
W/o Dr. A.D. Sehgal
R/o B29, Kailash Colony,
New Delhi - 110048.
.... Plaintiff
Versus
1.Sh. Manjeet Dhaka 61, Nilgiri Apartments, Pocket A, Aalaknanda, Kalkaji, New Delhi - 110019.
Also at:
210, Nilgiri Apartments, Alknanda, New Delhi - 110019.
2. Sh. Chandrabhan 61, Nilgiri Apartments, Pocket A, Aalaknanda, Kalkaji, New Delhi - 110019.
.....Defendants
Date Of Institution : 08.03.2019
Arguments heard : 24.05.2023
Date Of Judgment : 24.05.2023
CS DJ NO. 207/2019 Page No.1 of 12
SUIT FOR POSSESSION AND RECOVERY OF MESNE
PROFITS, DAMAGES, ARREARS OF RENT AND
PERMANENT INJUNCTION
ExPARTE JUDGMENT
1. Vide this Judgment, I intend to dispose off the suit for recovery of possession, arrears of rent, damages and permanent injunction against the defendants.
2. Brief facts of the case as elucidated from the plaint are that the plaintiff is the absolute owner of the property bearing no.61, Nilgiri Apartments, (alongwith scooter garage), Alaknanda Kalkaji, New Delhi110019, comprising of two bedrooms drawing cum dining room, kitchen, two bathrooms and one scooter garage (hereinafter referred to as "suit property"). The suit property was given on lease to the defendant no.1 by plaintiff's late sister namely Ms. Usha Sahni vide lease agreement dated 31.03.2014 for the period of eleven months commencing from 01.04.2014 at the monthly rent of Rs.30,000/. After the death of Ms. Usha Sahni defendant no.1 voluntarily started paying rent to the plaintiff and paid rent till March, 2015 and thereafter stopped paying rent even though continued to be in possession of the suit property. Defendant no.1 was asked to pay the rent vide letter dated 17.05.2018 but with no avail. In these circumstances, the plaintiff terminated the said tenancy of the defendant vide legal notice dated 18.07.2018 thereby calling upon him to vacate the suit property and to pay the arrears of rent. The said notice received back with report CS DJ NO. 207/2019 Page No.2 of 12 "Is makaan mein Chandra Bhan Rahta hain. Usne bola ki Manjeet yahaan nahi rehta. Wo ye makaan chod chukka hai". Feeling aggrieved plaintiff made a complaint to the concerned police station and also sent notice dated 20.11.2018 to both the defendants thereby calling upon them to vacate the suit property and to pay the arrears of rent but with no avail.
3. Defendants filed detailed written statement taking preliminary objections to the effect that plaintiff is not the owner of the suit property; that the plaintiff has failed to show any document/court orders proving her ownership over the suit property; that the plaintiff has admitted in her plaint that Ms.Usha Sahni expired on 04.02.2014 and in such a situation, it is highly improbable that Ms.Usha Sahni would have executed the lease agreement on 31.03.2014 after her death; that the lease agreement is also a fudged and forged document and the veracity of the same is put to strict proof; that the plaintiff has made omnibus allegations in the suit without corroborating the same with any documents.
3.1 In reply on merits, defendant has denied all the material contents of the suit and prayed for dismissal of the suit.
4. The plaintiff filed replication to the written statement of defendants thereby reaffirming and reiterating the contents of plaint and denying the contents of written statement.
5. From the pleadings of the parties, following issues were framed vide order dated 22.01.2022: CS DJ NO. 207/2019 Page No.3 of 12
1. Whether plaintiff is entitled for decree of possession as prayed for? OPP
2. Whether the plaintiff is entitled for mesne profits, if so at what rate and for which period? OPP
3. Whether plaintiff is entitled for recovery of rent of interest, as prayed for? If so, at what rate and for what period? OPP
4. Relief Thereafter, matter was fixed for plaintiff's evidence.
6. In order to prove her case, the plaintiff examined two witnesses. She examined herself as PW1. She has reiterated the facts of plaint in her affidavit Ex. PW1/1A. She has relied upon the documents i.e. the conveyance deed of the suit property executed by DDA in favour of Late Usha Sahni along with possession certificate and other DDA approved papers as Ex.PW1/1 (colly), Lease agreement dated 31.03.2014 executed between Defendant no.1 and Plaintiff's late sister Ms. Usha Shani as Ex.PW1/2, Succession certificate of mother of Plaintiff namely Late Raj Rani showing plaintiff along with her other three sisters namely Ms. Usha Shani, Ms.Uma Malhotra and Ms. Renu Chadha as four legal heirs as Ex.1/3, Death certificate of Late Smt. Usha Shani as Ex.PW1/4, Death certificate of Late Smt. Uma Malhotra as Ex.PW1/5, Defendant no.1's proposal to purchase the suit property dated 12.03.2015 from the plaintiff as Ex.PW1/6, Relinquishment deed dated 05.07.2016 executed by Ms. Renu Chadha in favour of plaintiff with regard to suit property as Ex.PW1/7, Letter CS DJ NO. 207/2019 Page No.4 of 12 of Attornement dated 17.05.2018 sent by plaintiff through defendant no.1 with regard to suit premises to attorn his tenancy in favour of plaintiff as Ex.PW1/8, Legal Notice on behalf of plaintiff dated 18.07.2018 thereby determined defendant no.1's tenancy and calling upon him to handover legal vacant possession as Ex.PW1/9, Unserved Legal Notice dated 18.07.2018 along with postal remark as Ex.PW1/10, Police complaint dated 03/07.08.2018 before SHO Police Station CR Park, New Delhi filed by plaintiff against defendants as Ex.PW1/11, Legal Notice dated 27.09.2018 on behalf of plaintiff addressed to defendant no.2 as Ex.PW1/12, Legal Notice dated 20.11.2018 on behalf of the plaintiff to the defendants as Ex.PW1/13. She was not cross examined by defendants.
6.1. Sh. N.L. Gayari was examined as PW2 and he tendered his evidence by way of affidavit Ex. PW2/A. He was also not cross examined by defendants.
7. Defendants did not lead any evidence and matter was fixed for final arguments.
8. I have heard arguments from ld. Counsel for the plaintiff and perused the record.
9. My issuewise findings are as follows: Issue no.1.
1. Whether plaintiff is entitled for decree of possession as prayed for? OPP
10. The onus to prove the issue was placed upon plaintiff.
CS DJ NO. 207/2019 Page No.5 of 1210.1. This is a suit for recovery of possession, arrears of rent, mesne profits/damages and permanent injunction. PW1 has deposed that the suit property was purchased by her sister namely Late Ms. Usha Sahni vide Conveyance deed Ex.PW1/1. Ms. Usha Sahni was unmarried and issueless and she died intestate on 04.12.2014. Death certificate is Ex.PW1/4. She had three sisters namely Dr. Vershal Sehgal i.e. plaintiff herein, Late Ms. Uma Malhotra and Ms. Renu Chaddha. Ms.Uma Malhotra already predeceased Ms. Usha Sahni. Death certificate is Ex.PW1/5. Accordingly, the suit property devolved upon the plaintiff and Ms. Renu Chaddha. However, Ms. Renu Chaddha relinquished her right and share in the suit property in favour of the plaintiff vide relinquishment deed Ex.PW1/7. Henceforth, plaintiff became the absolute owner of the suit property.
10.2. PW1 has further deposed that the suit property was given on lease to the defendant no.1 by plaintiff's late sister namely Ms. Usha Sahni vide lease agreement dated 31.03.2014 Ex. PW1/2 for the period of eleven months commencing from 01.04.2014 at the monthly rent of Rs.30,000/. After the death of Ms. Usha Sahni defendant no.1 voluntarily started paying rent to the plaintiff and paid rent till March, 2015 and thereafter stopped paying rent even though continued to be in possession of the suit property. Defendant no.1 was asked to pay the rent vide letter dated 17.05.2018 Ex.PW1/8 but with no avail. In fact defendant no.1 acknowledged himself to be the tenant of plaintiff vide letter Ex.PW1/6. In these circumstances, the plaintiff terminated the CS DJ NO. 207/2019 Page No.6 of 12 said tenancy of the defendant vide legal notice Ex.PW1/9 thereby calling upon them to vacate the suit property and to pay the arrears of rent. The said notice received back with report "Is makaan mein Chandra Bhan Rahta hain. Usne bola ki Manjeet yahaan nahi rehta. Wo ye makaan chod chukka hai". It was only at that movement did plaintiff came to know that defendant no.2 has trespassed into the suit property. Defendants have not come forward to rebut the said claim. The relationship of landlord and tenant has nowhere been challenged by the defendant no.1 and defendant no.2 has failed to establish better right then that of the plaintiff.
10.3. PW1 has further deposed that he got served the defendants with legal notice Ex.PW1/9 thereby calling them to vacate the suit property. The defendants have also not disputed the receipt of said notice. Once a contractual tenancy has been terminated by the landlord, the tenant is liable to be ejected from the suit property and he is under obligation to handover the possession of the same to the plaintiff.
11. In case of contractual tenancy plaintiff is required to prove the following three things for the relief of possession:
(i) Existence of landlord and tenant relationship ;
(ii) Termination of tenancy;
(iii) Rate of rent is exceeding to Rs.30,000/.
12. Plaintiff/PW1 has proved the first and second ingredients in view of the aforesaid discussion. Coming to the third one, the claim of plaintiff is that defendant no.1 was her tenant @ Rs.30,000/ per month CS DJ NO. 207/2019 Page No.7 of 12 vide lease agreement Ex.PW1/2. Defendant no.1 has not cross examined PW1 on the said aspect and the averments remained unrebutted and unchallenged. In view of the same, the third ingredient also stands proved and plaintiff is entitled to the possession of suit property.
Issue no.3 Whether plaintiff is entitled for recovery of rent alongwith interest, as prayed for? If so, at what rate and for what period? OPP
13. The onus to prove the issue was placed upon plaintiff.
14. In view of the aforesaid findings of issue no.1, it has already been held that defendant no.1 was the tenant in the suit property @ Rs.30,000/ per month vide lease agreement Ex.PW1/2 and defendant no.2 is trespasser in the same.
15. Regarding arrears of rent, PW1 has deposed that defendants paid a sum of Rs. 90,000/ out of total rent of Rs.8,70,000/ and defendant no.1 is liable to pay arrears of rent @ Rs.30,000/ per month for the period April 2015. He has further deposed that defendant no.1 was served with a legal notice dated 18.07.2018 Ex.PW1/9 thereby calling him to vacate the suit property within 15 days but he failed to vacate the same. PW1 has further deposed that the said notice received back with report "Is makaan mein Chandra Bhan Rahta hain. Usne bola ki Manjeet yahaan nahi rehta. Wo ye makaan chod chukka hai". Feeling aggrieved plaintiff made a complaint Ex.PW1/11 to the concerned police station and also sent notice dated 20.11.2018 CS DJ NO. 207/2019 Page No.8 of 12 Ex.PW1/13 to both the defendants thereby calling upon them to vacate the suit property and to pay the arrears of rent but with no avail. The defendants have not come forward to rebut her claim.
16. It is settled law that when the landlord alleges nonpayment of rent, the onus lies upon the tenant to prove that he has paid the rent. In the case titled as Sukhanand Vs. IVth Additional District Judge, Buledshahar & Ors. 1994 (2) RCR (Rent) 408 it has been held that "the onus to show payment of rent lies on the tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all." Similar view has been reiterated in the case titled as Raghubir Prasad Vs. Rajendra Kumar Gurudev, 1993(2) R.C.R. (Rent) 234, wherein it has been held that "on default in payment of rent, the onus to show payment of rent lies on tenant." Further, in the case of Satya Prakash Vs. District Judge Ghaziabad, 1982(1) R.C.R. (Rent) 295, it was observed that " if in a petition, tenant alleges that rent is paid, then as per Evidence Act, burden to prove payment lies on the tenant, as he alleges that payment is made." Reference can also be made to the judgment titled as Karamchand Deojee Sanghavi Vs. Tulshiram Kalu Kumawat, 1992(1) RCR 118 wherein the Hon'ble Bombay High Court observed that "in a case of eviction on arrears of rent, the onus would always be on tenant to prove that he has paid the rent."
17. Thus, the onus was upon the defendants to prove that they had CS DJ NO. 207/2019 Page No.9 of 12 made uptodate payment of rent. However, they had failed to discharge the said onus. Per contra, PW1 has deposed the rate of rent is Rs.30,000/ per month and has relied upon rent agreement dated 31.03.2014 Ex.PW1/2. The said averment also stands unrebutted. In view of the same, it stands established that defendant no.1 did not tender the rent w.e.f. April, 2015 till the date when plaintiff terminated his tenancy vide legal notice. Accordingly, I hold that plaintiff has proved the existence of arrears of rent @ Rs.30,000/ per month w.e.f. April 2015 till the termination of tenancy i.e. August, 2018. Issue no.2 Whether the plaintiff is entitled for mesne profits, if so at what rate and for which period? OPP
18. Coming to relief of mesne profits, PW1 has deposed that she had terminated the tenancy of defendants vide legal notice Ex.PW1/13 despite that defendants have not vacated the suit property. She has further deposed that the defendants continued to be in unauthorized use and occupation of the suit property after termination of tenancy and are in arrears of rent w.e.f. April 2015. The testimony of PW1 remained unrebutted and unchallenged. In view of the same, it is established that the defendants are occupying the suit property even after the determination of lease without paying rent. PW1 has further deposed that defendants have no right to remain in possession of the suit property after termination of tenancy which is causing her loss @ Rs.10,000/ per day and examined PW2 who has deposed that the rent would be around Rs. 40000/ to 50000/ per month as per the CS DJ NO. 207/2019 Page No.10 of 12 information received from "MagicBricks". However there is neither any document in support of the same nor she has examined any independent witness from the market to prove the said rate as prevalent market rate. In view of the aforesaid, I have no hesitation in holding that it would be absolutely reasonable and justified to pay the plaintiff mesne profits @ Rs.30,000/ per month from the date of termination of tenancy w.e.f. August, 2018 till vacation of the suit property.
19. Coming to the interest issue, it is well settled that interest is the integral part of the mesne profits and therefore the same has to be allowed in the computation of mesne profit itself. Reliance placed on the judgment titled as Mahant Narayana Devashtanam & Ors. Vs. Board of Trustees, AIR 1965 SC 1231. The aforesaid findings confirms that defendant had withheld the dues of plaintiff without any just reason and excuse. The plaintiff has claimed interest @ 18% per annum on the outstanding dues but he has failed to bring any contractual stipulation to the effect that he was entitled to any interest upon the decreed sum. However, since he has been denied enjoyment of his outstanding sum, I am of the opinion that he deserves to be compensated for the said loss as the said sum could have been gainfully invested by him in some fruitful venture. Consequently, plaintiff is awarded interest @ 6% per annum upon the decreed sum with effect from the date of filing of the present suit till handing over of the possession of the tenanted premises. In view of the aforesaid discussion, the issue is decided in favour of the plaintiff.
CS DJ NO. 207/2019 Page No.11 of 12RELIEF
20. In the light of my findings upon the abovesaid issues, the suit of plaintiff is hereby decreed with the following reliefs in favour of plaintiff and against the defendant:
(a) A decree for recovery of possession whereby defendants are directed to hand over the possession of suit property i.e. flat bearing no. 61SG, Pocket A, Alaknanda, Kalkaji, New Delhi 110019 to the plaintiff.
(b) A decree of recovery of arrears of rent @ Rs.30,000/ per month w.e.f. April 2015 till the termination of tenancy i.e. August, 2018.
(c) A decree of mesne profits @ Rs.30,000/ per month from the date of termination of tenancy w.e.f. August, 2018 till vacation of the suit property..
21. Cost of the suit also awarded in favour of plaintiff. Decree sheet be prepared accordingly. File be cosigned to record room.
Typed to the dictation directly (Geetanjali)
Corrected and announced Ld. Additional District Judge05
in the open court on this day South East/Saket Courts
24.05.2023 New Delhi/24.05.2023
CS DJ NO. 207/2019 Page No.12 of 12