Delhi District Court
Mohd Haroon Japanwala And Ors vs Mohd Umar on 5 August, 2024
1
IN THE COURT OF SH. SUMIT DASS, DISTRICT JUDGE
- 02 & WAQF TRIBUNAL, NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI
CS No. 956/2017
1. Mr. Mohd. Haroon Japanwala,
S/o Late Haji Mohd. Shafi,
C-2/19, Safdarjung Development Area.
New Delhi-110016.
2. Mrs. Abida Suleman Japanwala
(Deceased survived by LR already arrayed as defendant no.3)
W/o Late S.M. Suleman Japanwala,
Room No.6, Marina Hotel, G-59, Connaught Circus,
New Delhi-110001.
Through POA Mrs. Afshan Japanwala Iqbal
3. Mrs. Afshan Japanwala Iqbal,
D/o Late S.M. Suleman Japanwala,
Room No.6, Marina Hotel, G-59, Connaught Circus,
New Delhi-110001.
4. Mr. Anis Mohammad Omer
S/o Late Mohammad Umar,
1271, Н.Н.Н. Ballimaran Delhi-110006.
Through POA Mr. Mohammad Riaz Umar
5. Mr. Almas Begum
D/o Late Mohammad Umar,
1271, Н.Н.Н. Ballimaran Delhi-110006
Through LRs :-
A. Mrs. Safia Jamshed
w/o Sh. Abdul Hannah Jamshed
Arbt. 956/2017
Mohd. Haroon Japanwala v/s Md. Umar 1/19
2
r/o 70/71, Phears Lane, 2nd floor,
Chitaranjan Avenue, Kolkata - 700073.
B. Mrs. Arusa Dehivi
W/o Mr. Sajid Dehivi
R/o 97, Akashneem Marg,
DLF Phase-2, Gurgaon,
Haryana - 122002.
C. Mr. Anwar Siraj
S/o Late Mrs. Almas Begum &
Late Mr. Habibur Rahman
R/o 70/71, Phears Lane, 2nd floor,
Chitaranjan Avenue, Kolkata - 700073.
6. Mrs. Farzana Saeed
D/o Late Mohammad Umar,
1271, H.H.H. Ballimaran Delhi-110006.
Through POA
Mr. Mohammad Riaz Umar
7. Mr. Mohammad Riaz Umar
S/o Late Mohammad Umar,
1271, H.H.H. Ballimaran Delhi-110006.
.......PLAINTIFFS
VERSUS
Mr. Mohd. Umar
S/o Late Mohd. Iqbal
Shop No. G-1, Marina Arcade
Connaught Circus New Delhi - 110001.
.........DEFENDANT
Date of Institution : 31.08.2017
Arguments heard on : 31.07.2024
Date of Decision : 05.08.2024
Arbt. 956/2017
Mohd. Haroon Japanwala v/s Md. Umar 2/19
3
Suit for possession, recovery of damages, mesne profit &
permanent injunction
JUDGMENT
1. Captioned suit is for possession, recovery of damages, mesne profit and permanent injunction.
2. Facts of the case are that :
Plaintiffs are joint owners/landlords of the entire property bearing no. G-1 to G-24 and G-59, G-block Marina Arcade, Connaught Circus, New Delhi. The suit property in the present case is a built up premises bearing property no. G-1, Marina Arcade, Connaught Circus, New Delhi measuring/comprising of 318 sq.yards [herein after referred to as 'suit property/suit shop'].
2.1 The suit property is under the ownership of plaintiffs. GPA dated 29.08.2002 has been executed by plaintiff no.2 in favour of plaintiff no.3 authorizing her/appointing her as GPA for management and control of the Marina Hotel premises, Hotel Marina Building and other shops, showrooms which interalia includes the suit property. Plaintiff no.3 is duly authorized to institute the present suit and to do all such acts as necessary for the said purpose. Similar attorneys have been issued by plaintiff nos. 4 and 5 in favour of plaintiff no.7. The tenancy earlier was protected under the Delhi Rent Control Act, 1958 [in short "DRC Act"] reason being that the rate of rent was less than Rs. 3500/- per month.
Subsequently after the periodic enhancement of rent as per the DRC Act Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 3/19 4 the last rent was Rs. 3,630/- per month which was increased to Rs. 3,993/- per moth excluding service tax and other charges which was paid by the defendant through cheque. Thus, the tenancy shield having been broken as under the DRC Act - plaintiffs served a notice to quit dated 22.03.2017 in conformity with Section 106 of Transfer of Property Act, 1882 directing the defendant to hand over the vacant and peaceful possession of the suit property and also to pay use and occupation charges/ mesne profit @ Rs. 1,50,000/- per month as per the prevailing market rent.
2.2 Service of the notice was duly effected. Defendant failed to comply with the same. As such the defendant had become a trespasser. The defendant had also tendered cheques bearing no. 000004 and 000005 drawn on Yes Bank for the rent of 12 months respectively. The said cheques were for Rs. 47,916/- rent for twelve months and Rs. 6,948/- the service tax calculated @ 14.5% on the said sum.
Consequent to the aforesaid pleadings the suit was preferred seeking a decree of ejectment, decree of damages with interest, which for the pre suit period were computed to Rs. 6,35,000/- besides for a decree of permanent injunction praying therein that the defendant, its employees, assignees etc. should be prevented from creating any third party interest in the suit property or subletting, assigning or otherwise parting with possession and not to cause any addition/alteration, in the suit premises.
3. Written statement was filed. The version set forth by the defendant was that the plaintiff no.2,4,5 & 6 were neither owners nor the Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 4/19 5 landlord of the suit premises. Infact the tenant was M/s Tufeil Ahmed Mohd. Iqbal & Sons who had not been made a party to the suit for which the suit was liable to be dismissed/bad for mis-joinder of the parties. The tenancy is protected under the Delhi Rent Control Act as the rent of the premises is Rs. 2395.80p per month.
On merits the version set forth by the plaintiffs in the plaint was denied. It was contended that after the death of defendant's father, defendant had been paying the rent to the plaintiff no.1,3 & 7 and in fact M/s Tufeil Ahmed Mohd. Iqbal & Sons through its partner Md. Iqbal, the father of the defendant had taken the suit premises [first tenancy of the shop] on rent vide rent deed dated 20.04.1972 at the monthly rent of Rs. 70/- which was increased to Rs. 275/- per month in the year 1978. Viz a viz the said tenancy the last paid rent is Rs. 2,395.80p. Subsequently the father of the defendant in the year 1984 took a mezzanine floor built up over the suit property on rent @ Rs. 25/- per month. It was built up jointly after paying damages for the mezzanine floor. Since the owners and landlords of both the tenanted premises were same, a consolidated sum of Rs. 300/- was paid though there were two different tenancies. In fact viz a viz mezzanine floor the rent was Rs. 1,597.20p per month and it was Rs. 2,395.80p i.e. the current rate viz a viz the suit shop. Thus, the total sum was Rs. 3,993/- was for two tenancies - which was being paid on yearly basis. In fact there was no access to the mezzanine floor directly and later on with the consent of the landlord a passage from inside the suit property was built. Insofar as the service of the legal notice and the liability to pay the damages itself is concerned nothing was Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 5/19 6 admitted rather the said averments were strongly denied.
4. Replication to the written statement of the defendant was filed. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
5. Matter was put for trial on the basis of the issues which were settled in terms of order dated 29.09.2018. The same read as here under :
i) Whether the plaintiff is entitled to relief of possession as prayed for in clause (a) of the prayer clause ? OPP
ii) Whether the plaintiff is entitled to mesne profit to the tune of Rs. 6,35,000/- as prayed for in clause (b) of the prayer clause? OPP
iii) Whether the plaintiff is entitled for injunction as prayed for in clause (c) of the prayer clause ? OPP
iv) Whether the plaintiff is entitled for injunction as prayed for in clause (c) of the prayer clause ? OPP
v)Whether the plaintiff is entitled for interest, if so, at what rate and for what period? OPP
vi) Whether the present suit is barred under Section 50 of Delhi Rent Control Act, 1958? OPD
6. Evidence was led. On behalf of plaintiff the sole witness was plaintiff no.7 namely Md. Riaz Umar. He tendered his evidence by way of affidavit Ex. PW-1/A and relied upon the following documents :
i. Ex.PW1/1 Site Plan of the suit property.Arbt. 956/2017
Mohd. Haroon Japanwala v/s Md. Umar 6/19 7 ii. Ex.PW1/2 Copy of General Power of Attorney dated 29.08.2002 executed by Mrs. Abida Suleman Japanwala, plaintiff no.2. iii. Ex.PW1/3 Copy of General Power of Attorney dated 29.08.2002 executed by Mr. Anis Mohammad Omer and Mrs. Almas Begum, plaintiff no.4 & 5 respectively.
iv. Mark-A (Colly) - Copies of 13 (thirteen) cheques (running page no.50 to 60 of plaintiff's documents).
v. Ex.PW1/5-Legal Notice dated 22.03.2017 issued to defendant.
vi. Mark-B-Copy of speed post receipt.
vii. Mark-C Copy of tracking report of legal notice sent through speed post.
viii. Mark-D-Copy of courier receipt of legal notice (dated 22.03.2017).
ix. Mark-E Copy of print out of track report of courier receipt of legal notice (dated 22.03.2017).
x. Ex.PW1/10 (OSR) Copy of cheque dated 17.03.2017 bearing no.000004 for Rs.47.916/- drawn on Yes Bank.
xi. Ex.PW1/11 (OSR) Copy of cheque dated 17.03.2017 bearing no.000005 for Rs.6,948/- drawn on Yes Bank.
xii. Ex.PW1/12 (OSR) Copy of registered Lease Deed dated 22.09.2011 (running into 10 pages).
This witness was duly cross examined. PE was closed.
7. Defendant chose not to lead any evidence and in fact DE was closed in terms of order dated 25.08.2013.
Arbt. 956/2017Mohd. Haroon Japanwala v/s Md. Umar 7/19 8
8. I have heard the arguments advanced by Sh. Dattaray Vyas and Sh. Sanjay Gupta, Ld. Counsel for plaintiffs and defendant respectively. Written notes have been filed in support of their oral submissions. I have carefully gone through the same.
8.1 Ld. Counsel for the plaintiffs vehemently contended that the relationship of landlords and tenant is squarely admitted. The rate of rent is more that Rs. 3500/- per month. The suit property is outside the purview of the DRC Act. In any scenario as per the settled law the notice/summons for suit for ejectment qualifies to be a notice to quit as envisaged U/s 106 of Transfer of Property Act, 1882. As such he submits that a decree of ejectment requires to be passed. In the same breadth countering the submissions taken by the defendant in the written statement Ld. Counsel contends that there is no shred of evidence that at point of time there were two different tenancies or there were two tenancies so treated by the plaintiffs and defendant. In fact there was on common entry to the suit shop. The mezzanine had no separate entry. Secondly the rent was exclusively being tendered by Mohd. Umar and in fact Mohd. Umar was solely in occupation of the suit shop. Thus, he represents the interest of other co-tenants as well, if any. The rent was being paid by the defendant Mohd. Umar as he alone was using the premises and therefore a decree for ejectment be passed. On the aspect of mesne profit and damages he contended that the shop adjoining to the suit shop was let out and there was unimpeachable evidence i.e. registered lease deeds which are of contemporaneous period of time. The same can be relied upon viz a viz the aspect of mesne profit which otherwise also Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 8/19 9 Ld. Counsel for the plaintiffs submit that he leaves the same to the discretion of the Court.
8.2 On the other hand, Sh. Sanjay Gupta, Ld. Counsel appearing on behalf of defendant argues that the plaintiffs are not the owners of the suit property. In fact the body of the plaint itself shows that there was a discord between them. The initial terms of tenancy/ lease deed were not proved on record - the same were withheld. The legal notice was also not proved on record. There were two distinct independent tenancies. One for the suit shop and one for the extended mezzanine floor - the rent of which was being paid by one cheque however on the basis of the evidence led the contention of the plaintiff cannot be acceded to. To underscore the said contention he has read over the cross examination of PW Md. Riaz Umar. He also submitted that the first lease deed was proved which was interse the predecessor of the plaintiffs and Md. Iqbal s/o Tufeil Ahmed and Tufeil Ahmed s/o Abdul Lateef. As such LRs of Tufeil Ahmed were also necessary parties to the suit. For want of them in the array of parties the suit is liable to be dismissed.
9. I have given my thoughtful consideration to the submissions made at bar. Insofar as the issues which have been framed I am the opinion that the issue no.1 & 6 can be taken up cumulatively i.e. my findings on the issues are as under:
9.1 Issue no.1, 4 & 6 :-
i) Whether the plaintiff is entitled to relief of possession as prayed for in clause (a) of the prayer clause ? OPP Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 9/19 10
vi) Whether the present suit is barred under Section 50 of Delhi Rent Control Act, 1958? OPD The said issues are the crux of the case/bone of contention.
The version set forth by the plaintiffs is that there was one composite tenancy which is sought to be dispelled by the defendant contending that there were two tenancies. Obviously the burden is upon the defendant to prove this fact. The same could have been discharged by placing on record either any agreement to the said fact that there were two tenancies or by placing on record the rent receipts showing the existence of two tenancies. Now for more than 50 years despite the terms being amicable as there was no litigation and a mezzanine floor was also constructed jointly and that too by paying damages as per the assertion of the defendant nothing has been placed by the defendant side - by way of documentary evidence to suggest that there were two distinct tenancies. So much so the defendant has chosen not to step into the witness box at all/ subject himself to cross examination.
9.2 There is no letter nor any other document also placed on record by the defendant at the time of handing over the cheques - a covering letter sort or any other document showing that there were two tenancies. Admittedly the entrance to the mezzanine floor is the same that of the suit shop. It is not any sort of premises which can be used independently. In fact it is also a sort of additional construction in existing suit shop. Relevant to note herein in the document Ex. DX-1/A i.e. the lease deed [copy relied upon by the defendant] there is a Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 10/19 11 stipulation that defendant shall not carry out any addition or alteration without the consent of landlords in writing (clause No.4). The defendant has also stated that the construction which has been carried out was with the consent of the plaintiffs and after paying damages. He has not qualified the same to be construction carried out by the plaintiffs but construction which was carried out jointly after paying damages. The said additional construction/mezzanine floor also in a manner merge with the suit shop and it becomes a shop with the mezzanine floor with enhanced rent.
The version propounded that there were two tenancies had to be proved by the defendant. Insofar as the plea that there was a cheque of Rs. 47,916/- paid being the yearly rent in para no.9 of the plaint is concerned the same was vaguely denied as the defendant had denied the said paragraph of the plaint except admitting the issuance of two cheques. The defendant ought to have specifically replied and not evasively which strengthens the case of the plaintiffs.
9.3 Reliance can be made to certain judgments by either side which I am now dealing. Ld. Counsel for plaintiff had relied upon the following judgments :-
i) Tejpal Singh v/s M/s Metal Fabricators (2016) 233 DLT 251
ii) Gauri Shankar v/s Rakesh Kumar & Ors. RSA 146/2005 decided on 09.05.2020
iii) Delhi Automobiles & Ltd. v/s Kishan Gopal Ahuja 2011 SCC Online Del 840.Arbt. 956/2017
Mohd. Haroon Japanwala v/s Md. Umar 11/19
12
9.4 On the other hand Ld. Counsel for the defendant has relied
upon :-
i) Karam Chand Thapar & Brothers (Cs) ltd. v/s Prem Kumar Khullar & Ors. 1986 (10))DRJ64 9.5 Insofar as the judgment which has been relied by the defendant side i.e. Karam Chand Thapar & Brothers (Cs) ltd. v/s Prem Kumar Khullar & Ors.(supra) suffice to note herein that the tenancy in said case was governed by registered lease deed dated 11.03.75 whereby the suit premises was let out to the company and not to the person who was paying the rent/paying the amount to the landlord. In the said conspectus of circumstances the question of Mr. Gupta (the occupant of the suit property) being a direct tenant under the landlord was negated as there was no evidence of surrender of tenancy. I am of the opinion that this judgment does not assist the defendant in any manner. In fact the plaintiffs have sued the defendant who is the tenant and in possession to the exclusion of all others for a significant period of time coupled with the fact that the other co-tenants had not objected to the said continuation of state of affairs which also infers that the tenancy rights are exclusively of the defendant who is singularly occupying/paying the rent.
9.6 On the said aspect the judgment of Gauri Shankar v/s Rakesh Kumar & Ors. (supra) para 42 has been strongly relied upon by the plaintiff side. Para 42 of the judgment reads as under :-
"42. 1 may in this context reiterate that the tenancy of the appellant/plaintiff and the respondent/defendant No.1 under the respondent/defendant No.2 was under the Delhi Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 12/19 13 Rent Control Act. Under the Delhi Rent Control Act, it is the settled principle in law that a petition of eviction by one of the several landlords, without even impleading others, is maintainable and the order of eviction obtained in pursuance thereto executable. I, in Chemons India Pvt. Ltd. Vs. Vijay Singh Sandhu 204 (2013) DLT 260 (SLP(C) No.6346/2014 titled Chemons India Pvt. Ltd. Vs. Vijay Singh Sandhu was dismissed on 21 February, 2014) have with reference to the case law cited therein held, that the judgments pronounced under the Rent Act and holding one of the several landlords to be alone competent to sue for eviction of the tenant, had been extended even to tenancies not governed by the Rent Act. Thus, the law is that one of the several landlords can sue one of the several tenants and judgment in which would bind all the landlords/tenants i.e. even those not parties. Once the legal proceedings for eviction would have been maintainable against the respondent/defendant No.1 only, even without impleading the appellant/plaintiff, there is no reason, why surrender of tenancy by the respondent/defendant No.1 would not bind the appellant/plaintiff."[Emphasize mine] In view of the aforesaid ratio the contention that all other co- tenants, if any should be impleaded as a party to the suit is negated. I also note herein that despite the tenancy being 50 years old nobody had either objected to the said fact or joined the proceedings or otherwise at any point of time interfered in the possession of the suit premises or in the working of the shop run from the suit premises. In fact the defendant had chosen not to name any of the co-tenants. As such this objection is sans merit.
9.7 The second judgment i.e. Tejpal Singh v/s M/s Metal Fabricators (supra) para 28 of the same is relevant. Same read as under :
28. For the reasons that (i) allt he portions of the demised Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 13/19 14 premises are part of the same property; (ii) there is no intrument or documents creating different tenancies or lease, as alleged; (iii) evidences of single payment; and
(iv) one entity beig in possession of the entire premises (behe the landlor or the tenant), the tenancyis held to be one."
On all such parameters plaintiffs have been able to make out their case.
9.8 The third judgment relied upon Delhi Automobiles & Ltd. v/s Kishan Gopal Ahuja (supra) Para 13,15,16,17,18 & 19 are relevant which read as here under :
13. The defence of the defendant as is evident from the written statement is that there are two separate tenancies i.e. of the ground floor and the mezzanine floor and separate rent was being paid for each of the two distinct tenancies. It was stated that the civil Court has no jurisdiction as bar of Section 50 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRCA') is attracted rent being below Rs. 3,500/- per month.
Ownership of the plaintiff was not disputed.
15. Trial Judge on the basis of oral and documentary evidence which included the statement of PW-1 and deposition of DW-1 held that there was single tenancy which had been created by the plaintiff in favour of the defendant rent was being paid by a single cheque; the documents Ex. PW - 1/2 and Ex. PW - 1/3 which were the covering letters tendering the rent had advanced this submission. DW-1 had himself admitted that the rent of the whole premises was being paid to the plaintiff by way of a single cheque. The cross-examination of PW-1 by the defendant's counsel was also to the effect that the cheques were being sent to the plaintiff by a single cheque.
Arbt. 956/2017Mohd. Haroon Japanwala v/s Md. Umar 14/19 15
16. While dealing with issue No. 2, the Court had returned a finding that the defendant had attorned to plaintiff No. 2; a single co-owner can also file a suit without impleading other co-owners. This legal proposition is not disputed before this Court even today.
17. On the receipt of notice, the Court had returned a finding that the legal notice dated 09.05.2001 (Ex. PW - 1/5 ) was a valid termination of the tenancy of the defendant under the of Section 106 of the Transfer of Property Act (hereinafter referred to as the 'TPA'). The postal receipts had been exhibited as Ex. PW - 1/6 & Ex. PW - 1/7 UPC receipt was also exhibited as Ex. PW - 1/8 AD Card receipt was Ex. PW - 1/10 bore the signature of one Ghani. There specific denial by the defendant that no person by the name of Ghani had worked with it or that Ex. PW- 1 / (10') was not signed by his employee. The trial Judge had also noted that the defendant had not denied the receipt of notice at the residence of Chairman/MD. Receipt of notice had been validly proved.
18. These fact findings of the trial Judge had been affirmed by the first appeal court. It had been reaffirmed that the tenancy was a month to month tenancy. The rent had been tendered by the defendant to Kishan Gopal Ahuja and Arjun Lal Ahuja. The arguments urged before this Court that the mezzanine floor was constructed in the year 1984, had also been gone into in the impugned judgment. It was noted that it was never the case of the defendant that there was a floor between the ground floor and the first floor which was later on let out to the defendant by means of any oral tenancy; mezzanine floor was already in existence at the time when the premises had been let out to the defendant; PW-1 in his cross- examination had clarified that this mezzanine floor was in existence at the time of letting out of the premises upon which the defendant had made channels and wooden plans unauthorizedly. The first appellate court had also noted a fact finding that there was no separate floor which was let out separately to the defendant and the mezzanine floor constructed subsequently was a part of the premises which had been Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 15/19 16 let out to the defendant. There were no two separate and distinct tenancies; there was a single tenancy; a single cheque was being paid by the defendant and being received by the plaintiff for the suit property. Documentary evidence including Ex. PW-1/3 & Ex. PW- 1/4 had been adverted to. The defendant had also attorned to Radha Rani after the death of Arjun Lal; suit filed by a single co-owner was also maintainable.
19 This is a second appeal Court. It is not a third fact finding Court. The fact findings have been delved into in detail after scrutiny of both oral and documentary evidence. It had been established and proved before the courts below that a single tenancy of the suit property had been created by the plaintiff in favour of the defendant for which a single cheque of rent was being paid; it was a monthly tenancy. Legal notice dated 09.05.2001 had validly terminated the tenancy of the defendant; it was duly received by the defendant. The suit for possession and mesne profits was rightly decreed in favour of the plaintiff."
The said judgment also assist the case of the plaintiffs.
9.7 Consequent to the aforesaid discussion in my opinion defendant has failed to substantiate the plea that there existed two tenancies for which he was paying one consolidated sum of money as rent. Rather the fact that one cheque was paid towards the entire rent itself means that there was one tenancy.
10. Once the provisions of Delhi Rent Control Act ceases to apply the plaintiffs can file a suit for ejectment. Summons of the suit by itself are notice to quit as envisaged U/s 106 of Transfer of Property Act, 1882. Objections with regard to legal notice and service thereof are now Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 16/19 17 immaterial or only are sort of academic discussion.
10.1 Reference in this regard can be made to the leading judgment titled as Jeevan Diesels & Electricals Ltd. v/s M/s Jasbir Singh Chadha HUF & Anr. 2011 (182) DLT 402 10.2 I am not burdening the present order with other case laws on the said subject. The ingredients for a decree of ejectment are squarely made out as here under:
i) Relationship of landlord and tenant is made out.
ii) Rent is more than Rs. 3500/- per month
iii) Suit for ejectment has been filed; summons whereof by itself is legal notice to quit - an information to vacate since the tenancy bond has been snapped.
Issues are decided accordingly - issue no.1 is decided in favour of the plaintiffs and issue no.6 is decided adverse to the defendant.
11. Coming to the other issues the same can be bunched up together.
Issue No. 2, 3,4 & 5:-
ii) Whether the plaintiff is entitled to mesne profit to the tune of Rs. 6,35,000/- as prayed for in clause (b) of the prayer clause? OPP
iii) Whether the plaintiff is entitled for injunction as prayed for in clause (c) of the prayer clause ? OPP
iv) Whether the plaintiff is entitled for injunction as prayed for in clause (c) of the prayer clause ? OPP Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 17/19 18
v)Whether the plaintiff is entitled for interest, if so, at what rate and for what period? OPP There is a lease deed of a shop which has been let out and is adjoining to the suit premises. Though objection was sought to be raked up that the said tenancy terms cannot be equated for the reason that a chemist shop is a 24 hour business. In my opinion even if it is stated to be 24 hour business still day and night cannot be equated or the business in the day time can be equal to the business at night time. Still, the rate of rent is stated to be Rs. 2 lacs per month. Even if I take 50% of the same it comes to Rs. 1 lac per month which to my mind is a fair and reasonable estimate of the compensation/mesne profit which the plaintiffs are entitled to since the date of filing of the suit till the shop remains in possession of the defendant. The property is located in Connaught Place which is prime commercial property. The pre suit mesne profit are also equated at the same rate i.e. Rs. 1 lac per month.
11.1 Considering the fact that the suit is of recent vintage i.e. six years old I am giving 10% increase in the mesne profit after one year from today, if the suit premises are not vacated with an yearly rise of 10% per year thereafter.
11.2 The defendant is now an unauthorized occupant as the tenancy has been terminated. In any scenario being a tenant or otherwise being an unauthorized occupant he cannot part with possession of the suit property or otherwise cannot create any third party interest or in any Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 18/19 19 manner carry any addition/alteration in the suit premises. To that extent injunction order is passed against him.
Issues are decided accordingly in favour of the plaintiffs.
12. Cost of the suit is also awarded to the plaintiffs. Defendant is directed to vacate the premises within a period of three months from today. The decree of mesne profit shall be executable upon filing of deficient Court fees.
Decree sheet be prepared accordingly. File be consigned to Record Room.
Pronounced in open Court on 05.08.2024 (Sumit Dass) District Judge-02 & Waqf Board New Delhi District, Patiala House Courts New Delhi Arbt. 956/2017 Mohd. Haroon Japanwala v/s Md. Umar 19/19