Delhi District Court
Sh. Arun Kumar vs . Smt. Badrun Nisha on 10 May, 2022
Sh. Arun Kumar vs. Smt. Badrun Nisha
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR no. DLCT01-013904-2019
SUIT NO.:- 232/2019
UNIQUE CASE ID NO.:- 1047/2019
IN THE MATTER OF :-
Shri Arun Kumar
Son of Shri Sharvan Kumar,
R/o E-16/1651, Bapa Nagar,
Karol Bagh, New Delhi 110005 .....Plaintiff
Versus
Smt. Badrun Nisha
wife of Sh. Roza Mohmmad,
Sole Prop. Of
M/s Ali Cosmetics
Shop No. E-16/1262(old No. T-4507)
Padam Singh Road, Bapa Nagar, Karol Bagh,
New Delhi-05
Also at;
R/o H.No. E-16/446, Bapa Nagar,
Karol Bagh, New Delhi 110005 .....Defendant
SUIT FOR RECOVERY OF POSSESSION, RENT, MESNE
PROFITS AND PERMANENT INJUNCTION
Date of institution of the Suit : 10/10/2019
Date on which Judgment was reserved : 12/04/2022
Date of Judgment : 10/05/2022
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Sh. Arun Kumar vs. Smt. Badrun Nisha
::- J U D G M E N T -::
By way of present judgment, this court shall
adjudicate upon suit for recovery of possession, rent, mesne profits
and permanent injunction filed by the plaintiff against the
defendant.
CASE OF THE PLAINTIFF AS PER PLAINT :
1. Succinctly, the necessary facts for just adjudication of the
present suit, as stated in the plaint are as under:
(i). That, Smt. Badrun Nisha wife of Sh. Roza Mohmmad,
R/o E-16/446, Bapa Nagar, Karol Bagh, New Delhi, sold out
one shop having dimension approximately 4'.6" x 10' having
total area approximately 4.27 sq. meter situated on the
ground floor without roof right being part of property
bearing no. E-16/1262, (Old No. T-4507), Padam Singh
Road, Bapa Nagar, Karol Bagh, New Delhi, hereinafter
referred to as the 'suit property' to Sh. Arun Kumar S/o
Sharvan Kumar R/o E-16/1651, Bapa Nagar, Karol Bagh,
New Delhi, for a valuable consideration and accordingly
executed the Sale Deed dated 03.06.2019 registered on 4th
June, 2019 with the office of Sub-Registrar, Asaf Ali Road,
New Delhi. The true copy of the said sale deed is filed.
(ii) That, prior to execution of the aforesaid Sale Deed,
the suit property was being used for running the business
under the name and style of M/s. Ali Cosmetics as sole prop.
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Sh. Arun Kumar vs. Smt. Badrun Nisha
by the defendant. There is one electricity meter bearing CA
No. 1450838301 of which Sh. Ashok Kumar Jain, the
predecessor in interest of defendant was the registered
subscriber of the said electricity meter provided by BSES is
installed in the suit property.
(iii) That, having purchased the suit property by Sh. Arun
Kumar, he agreed to accept Smt. Badrun Nisha as tenant in
respect of the suit property amongst other on the following
terms and conditions :-
(a) The owner/landlord has agreed to let out /accept
aforesaid tenant for a limited period of 11 months,
accordingly tenancy shall commence from 4th June,
2019 and ending on 3rd May, 2020.
(b) That the tenant has agreed to continue to use the
demised shop for running the business of sale of
cosmetic items under the name and style of M/s Ali
Cosmetic in the demised shop. The tenant undertakes
not to enter into agreement such as partnership
/Agency etc or of any nature whatsoever with any
other person/s, in any form to use the demised shop,
temporarily or permanent.
(c) The agreed rate of rent of the demised shop is Rs.
40,000/-(Rupees Forty Thousands Only) per month
exclusive of electricity charges. To the demised shop
electricity is enjoyed through meter bearing CA No.
1450838301 of which Sh. Ashok Kumar Jain, the
predecessor in interest of Smt. Badrun Nisha is the
registered subscriber of the said electricity meter,
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Sh. Arun Kumar vs. Smt. Badrun Nisha
provided by BSES. It shall be the sole responsibility
of the tenant to regularly and punctually pay the
electricity bill raised by the concerned local body from
time to time.
(d) That the tenant would pay rent of the above stated
demised shop every month in advance on or before
4th day of each English calander month.
(e) That the tenant has taken the demised shop for
running the business of sale of cosmetic items under
the name and style of M/s Ali Cosmetic. The tenant
undertakes not to carry on any other activity in the
said demised shop apart from using the same for
aforesaid purposes and in case the tenant wish to
change the nature of the purposes of letting then she
may do so by taking only prior permission in writing
from the owner/landlord.
(f) That the period of tenancy shall be of eleven
months only commencing from 04.06.2019 and shall
come to end by efflux of time on or before
03.05.2020.
(g) That the Tenant shall not make any additions,
alterations, constructions in the demised shop.
(h) That the Tenant shall not sub-let, assigned or
otherwise parted with the whole of or any part thereof
to any other person(s), temporary or permanent
without the prior written consent of the
landlord/owner.
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Sh. Arun Kumar vs. Smt. Badrun Nisha
(i) That the Tenant will allow the Owner/Landlord and
his agents to inspect the demised shop during the
working hours. That the Tenant will pay the agreed
rent to the Owner/Landlord in advance on or before
4th day of every month.
(j) That the Tenant will use the tenanted premises only
for aforesaid purpose only.
(k) That the tenant shall enjoy the electricity to the
tenanted premises and shall pay the charges as per bill
raised by the local body from time to time. The tenant
shall be liable to pay electricity charges till such time
the tenant retains the possession of the tenanted
premises.
(l) That all the notices to be given under this
Agreement of Rent by either party to the other shall,
unless otherwise specifically provided, be given by the
Landlord to the Tenant and by the Tenant to the
Landlord at their respective addresses given above, as
herein provided, notices, if delivered by hand, shall be
deemed to have been received on the date of delivery,
and if sent by registered post, they shall deemed to
have been received in due course.
(m) That the tenant is bound to pay or tender at the
proper time and place, the rent to the Landlord/Owner
or his agents in that behalf. Default in payment of rent
of two consecutive months shall amount to breach of
the covenant of the present Rent Agreement and shall
Suit NO. 232/19 Page 5 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
give rise right to the Landlord to determine the
tenancy on the said reasons.
(n) That, if for whatsoever reasons and
circumstances , Tenant does not vacate the tenanted
premises on the expiry of the tenancy period or
determination of the tenancy or on breach of the
covenants herein, then tenant shall be deemed to be in
unlawful and illegal possession of the tenanted
premises and in that event shall be liable to pay Rs.
500/- per day to the Landlord/owner besides the
amount equivalent to the rent as stated hereinbefore,
till the time the actual possession shall be delivered to
the Landlord / owner. The said amount shall be
accepted without prejudice to take appropriate legal
proceeding to take back the possession by due course
of law.
(o) That the Tenant has acknowledge and admitted
that present agreed rate of rent of the demised shop is
the prevalent market rate of rent of the similar situated
demised shop in the vicinity.
(iv) That, since the date of execution of the aforesaid rent
agreement, the agreed rent of the tenanted shop has not been
paid to the plaintiff which necessitated the plaintiff to issue
the legal notice dated 26.8.2019 through Advocate to the
defendant. The said composite legal notice of determination
of tenancy and demand of arrears of rent and damages of
future period was sent thorough speed post at both the
addresses of the defendant. The original postal receipts and
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Sh. Arun Kumar vs. Smt. Badrun Nisha
Track reports are filed herewith. The defendant neither
complied with the requisitions made in the said notice nor
replied thereto till date of filing the present suit.
(v) That, the tenancy of the tenant-defendant has been
determined by serving the composite notice of demand and
termination of tenancy dated 26.8.2019 and accordingly was
called upon to handover the vacant and peaceful possession
of the demised shop to the plaintiff. So the relationship of
landlord and tenant between the parties to the present suit
also come to an end.
(vi) That, vide the legal notice dated 26.8.2019, defendant
was intimated that after seven days from the date of receipt
of the legal notice and till the time the actual, vacant and
peaceful possession of the said demised shop shall be
delivered to the plaintiff the defendant shall be liable to pay
charges for use and occupation calculated @ Rs. 500/ - per
day besides the amount equivalent to the monthly agreed
rent i.e. Rs. 40,000/= per month.
(vii) That, since 04.9.2019, the defendant is illegally and
unauthorisedly occupying the demised shop and her status is
that of trespasser. The plaintiff state that defendant has no
right in law to illegally use and occupy the demised shop and
defendant is liable to be restrained by issue of permanent
injunction from using the aforesaid demised shop for any
purpose In view of the aforementioned facts and
circumstances, the plaintiff filed the present suit for recovery
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Sh. Arun Kumar vs. Smt. Badrun Nisha
of possession, rent, mesne profits and permanent injunction
against the defendants.
2. Summons were issued. Defendant appeared and filed his
written statement.
CASE OF DEFENDANT AS PER WRITTEN STATEMENT
3. Succinctly, the case of defendant is as under:
(i) That the present suit is not maintainable on facts or in the
eyes of law. The Plaintiff has not approached the Court with
clean hands and has suppressed the vital material and
important facts from the Court.
(a) Defendant contends that he is the owner of the one
shop, size 4 ft X 10 ft (approximately), measuring area
4.27 square meters (approximately), on Ground Floor,
without its roof rights, Part of Property bearing no. E-
16/1262 (Old No. T-4507) along with proportionate
rights of the land underneath the same, situated at
Padam Singh Road, Bapa Nagar, Karol Bagh, New
Delhi110005, having purchased the same from Shri
Ashok Kumar Jain S/o Shri Tara Chand Resident of
3368-B, Gali No. 2, Raghbar Pura-II, Gandhi Nagar,
Delhi for valuable consideration by virtue of
Registered Sale Deed on 10.04.2017.
(b)Defendant's sons namely Mushtaq Ali have been
running the business of sale of cosmetic items under
Suit NO. 232/19 Page 8 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
the name and style of M/s Ali Cosmetic in the said
shop.
(c) Defendant's youngest son namely Fakhruddin Ali was
in need of funds to establish independent business.
That as such, the Defendant's son Fakhruddin Ali
comes in contact with the Plaintiff.
(d) That Plaintiff agreed to provide financial assistance to
the Defendant's son Fakhruddin Ali subject to
execution of sale deed of the shop in question as
security.
(e) That at the request of her son Fakhruddin Ali, the
Defendant agreed to execute the Sale Deed of the
Shop in question and in consideration, the Plaintiff
agreed to provide the financial assistance to the tune
of Rs 2,60,000/- (Rupees Two Lacs Sixty Thousands
Only) to Defendant's son Fakhruddin Ali for
establishment of independent business.
(f) That the Plaintiff made the payment of Rs 2,60,000/-
(Rupees Two Lacs Sixty Thousands Only) vide
cheque no. 325167 drawn on Axis Bank, Patel Nagar,
New Delhi to Defendant.
(g) That in consideration, the Defendant executed sale
deed of the shop in question in favour of the Plaintiff
on 03.06.2019 with an understanding that as and when
the Defendant's son Fakhruddin Ali returned the loan
amount of Rs 2,60,000/- (Rupees Two Lacs Sixty
Thousands Only) along with interest to the Plaintiff
then in that eventuality, the Plaintiff again re-
Suit NO. 232/19 Page 9 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
transferred the said shop to the Defendant. That the
Defendant also handed over the original sale deed
dated 10.04.2017 (which was executed in favour of
Defendant) to the Plaintiff. It is matter of fact that the
market value of the said shop is much more than the
sale consideration of Rs 2,60,000/- (Rupees Two Lacs
Sixty Thousands Only).
(h) That it is submitted that the possession of the said
shop was/ is always remained with the Defendant
through her sons.
(i) That in the meantime, the Defendant suffered personal
set-back when one of her son, namely Mr. Fakruddin
Ali committed suicide at young age on 16.08.2019 due
to pressure put upon him by the Plaintiff for return of
money of Rs.2,60,000/- alongwith interest.
(j) That the Defendant never entered into and/or executed
any rent agreement on 04.06.2019 in respect of the
shop in question with the Plaintiff, as alleged and
relied upon. The said rent agreement is forged and
fabricated piece of documents. That Defendant denied
that Rent Agreement dated 04.06.2019 bears her
signature. It is specifically denied that the Defendant
taken the said shop on rent from the Plaintiff for a
period of 11 months, with effect from 4th June, 2019
till 3rd May, 2020. It is further wrong and therefore
specifically denied that Defendant is further liable to
pay Rs 40,000/- towards monthly rent of the said
shop.
Suit NO. 232/19 Page 10 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
(k) That the defendant keeps her right reserve to refund
the financial assistant of Rs.2,60,000/- and for
cancellation of sale deed dated 03.06.2019 in respect
of shop in question as with an understanding that as
and when the Defendant's son Fakhruddin Ali returned
the loan amount of Rs 2,60,000/- (Rupees Two Lacs
Sixty Thousands Only) along with interest to the
Plaintiff then in that eventuality, the Plaintiff again re-
transferred the said shop to the Defendant.
(ii). That all these facts are well within the knowledge of
the Plaintiff, yet the Plaintiff approached the Court for
claiming discretionary relief against the Defendant, on the
basis of forged and fabricated Rent Agreement dated
03.06.2019.
(iii). That no legal right enforceable in favour of the Plaintiff
in respect of said shop on the basis of forged and fabricated
Rent Agreement dated 04.06.2019. Moreover, it is stated that
it may even be dereliction of duty if the suit is pointlessly
continued until its normal end, i.e. by constraining the
parties to lead evidence even though it is quite clear to all
concerned that the suit is already dead. Instead, euthanasia
has to be performed.
(iv). Thus, the Plaint is liable to be rejected in view of
provision of Order 7 Rule 11 (a) of CPC, as it is the duty of
the court to see if plaint really discloses any cause of action
or if the plaint was barred under the provisions of any law of
limitation. That this suit is not maintainable and is liable to
Suit NO. 232/19 Page 11 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
be dismissed as no cause of action has ever arisen in favour
of the plaintiff and against the Defendant and hence the
present suit is nothing but an abuse of process of law and as
such the same is liable to be dismissed with special cost.
(v) That the present suit filed by the Plaintiff is malafide,
mischievous, vexatious, and fictitious, in nature and hence is
liable to be dismissed.
(vii) That the suit has not been properly valued for the
purposes of court fees and jurisdiction and is therefore liable
to be rejected out-rightly. It is admitted fact that the Plaintiff
is not in possession of the shop in question. It is also not out
of place to mention herein that the Plaintiff by way of
present suit claim possession of suit property on the basis of
forged and fabricated Rent Agreement. The Plaintiff is liable
to pay the court fee on the market value of the suit property.
The plaint is also liable to be rejected on this short ground
alone.
(viii) That the suit has not been properly verified in
accordance with law and liable to be dismissed in view of
provision of section 41 (i) of the Specific Relief Act, 1963
and if the suit is allowed and injunction is granted in favour
of the Plaintiff then the same would amount to taking benefit
of his own wrong which is not permissible under law. It is
already submitted that Plaintiff did not have any rights, title,
interest or lien over the shop in question.
REPLICATION
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Sh. Arun Kumar vs. Smt. Badrun Nisha
4. Plaintiff filed the Replication controverting the
allegations/ contentions in the Written Statement of the
Defendant and contents of the plaint have been reiterated
and reaffirmed.
5. The court vide order dated 08/10/2020 directed the
defendant to deposit a sum of Rs.20,000/- every month on or
before 15th day of each succeeding month in the court and
pay balance sum of Rs.20,000/- per month to the plaintiff on
or before 15th day of each succeeding month. Thereafter, an
application was filed by the plaintiff under Order XV-A(2)
read with Section 151 CPC for striking the defence of the
defendant on the ground that the defendant has failed to
comply with the order dated 08/10/20220. The application
filed by the plaintiff for striking off the defence of the
defendant was allowed vide order dated 17/4/2020 and the
defence of the defendant was struck off and the matter was
listed for plaintiff's evidence.
PLAINTIFF'S EVIDENCE
6. Plaintiff has examined Sh. Ramesh Kotiya as PW1
who relied upon evidence by way of affidavit ExPW1/A and
documents as under:
(i) Special Power of attorney executed by the plaintiff in
favour of PW1 Ex.PW1/1.
(ii) Copy of sale deed dated 04.06.2019 Ex.PW1/2 (OSR).
(iii) Copy of site plan Ex.PW1/3 (OSR).
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Sh. Arun Kumar vs. Smt. Badrun Nisha
(iv) Rent agreement dated 04.06.2019 Ex.PW1/4 (colly) (6
pages).
(v) Legal Notice Ex.PW1/5 and its postal receipts
Ex.PW1/6 & Ex.PW1/7.
(vi) Downloaded Tracking reports Ex.PW1/8 & Ex.PW1/9.
(vii) Certificate u/s 65B of Indian Evidence Act ExPW1/10.
FINDINGS
7. I have heard the Ld. counsel for the parties and have
given thoughtful consideration to the rival contention and
carefully perused the record.
8. The present suit has been filed by the plaintiff for
recovery of possession, rent, mesne profit and permanent
injunction. The power of attorney holder of the plaintiff
deposed as PW1 and stated that he is maternal uncle of the
plaintiff and he has been participating in the negotiations
between the parties for purchase of the suit property since
the beginning and therefore, he is well aware with the facts
of the present matter. The witness further deposed that due to
the nature of his business, the plaintiff generally remains out
of Delhi, and therefore, the original power of attorney
ExPW1/1 was executed by the plaintiff in his favour. PW1
further deposed that the defendant sold the suit property
having dimension approximately 4'.6"x10', having total area
of approximately 4.27 sq. meter situated on the ground floor
without roof being part of the property bearing no. E-
Suit NO. 232/19 Page 14 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
16/1262, (Old No. T-4507), Padam Singh Road, Bapa Nagar,
Karol Bagh, New Delhi, for a valuable consideration and
accordingly executed the sale deed dated 03/06/2019
registered on 04/06/2019 which is ExPW1/2 in favour of the
plaintiff. The witness identified the signature of the plaintiff
at point A and of the defendant at point B on ExPW1/1. The
witness also identified the signatures of the witnesses at
point C and D on ExPW1/1. The witness further deposed
that the site plan of the property was also got prepared and
the same is part and parcel of ExPW1/2. PW1 further
deposed that prior to execution of the sale deed, the suit
property was being used for running the business under the
name and style of M/S Ali Cosmetics as sole proprietor by
the defendant. PW1 further stated that after purchasing the
suit property, the plaintiff agreed to accept the defendant as
tenant of the purchased shop for a limited period of 11
months commencing from 04/06/2019 and ending on
03/05/2020 on a monthly rent of Rs.40,000/- exclusive of
electricity charges. The rent agreement dated 04.06.2019 was
executed between the parties which is ExPW1/4. Each page
of ExPW1/4 bears the signatures of the plaintiff at point A
and of the defendant at point 'E'. The witness has also
exhibited the site plan of the property as ExPW1/3 and
deposed that the site plan is the true copy of the plan forming
part of the registered sale deed. The witness further deposed
that he has personal knowledge of the fact that the defendant
did not execute sale deed Ex.PW1/2 subject to the condition
that on return of financial assistance as alleged to the tune of
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Sh. Arun Kumar vs. Smt. Badrun Nisha
Rs. 2.60 lakhs given by plaintiff to the son of the defendant,
the ownership of the shop shall be re-transferred to the
defendant. The witness further deposed that it was well
known in the vicinity of the suit shop that defendant is
searching intending purchaser of the suit property as she was
willing to sell the ownership of the said shop and plaintiff on
coming to know of the said fact, approached the defendant
and after due deliberation by the parties, the sale
consideration of the said shop was settled and paid. The
witness deposed that defendant is not entitled to return the
sum of Rs.2.60 lakhs and seeks cancellation of the sale deed
dated 03/06/2019 executed by her in respect of the suit
property. PW1 further deposed that since 04/09/2019, the
defendant is illegally and unauthorizedly occupying the
demised shop as no rent has been paid by the defendant from
the very inception of the rent agreement.
9. PW1 was cross examined by the Ld. counsel for the
defendant and in his cross examination the witness stated
that the market value of the property was Rs. 30 Lakhs and
the defendant demanded Rs. 35 lakhs. Thereafter, the deal
was finalized for Rs. 30 lakhs after negotiation. The amount
of Rs. 2.60 lakhs was paid by way of cheque as per circle
rate and rest of the amount was paid in cash. The witness
admitted that there is no receipt of cash payment. However
the witness volunteered that the cash was paid to the
defendant at the time of execution of the sale deed
Ex.PW1/2. The witness further stated in his cross
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Sh. Arun Kumar vs. Smt. Badrun Nisha
examination that he does not know what was the circle rate
in the area when the suit property was purchased by Arun
Kumar. But the circle rate of the suit property was
approximately Rs.2.60 lakhs when the suit property was
purchased by the defendant from the erstwhile owner. The
witness further stated in his cross examination that at the
time of execution of the sale deed ExPW1/2, the defendant
was accompanied by her two sons and the plaintiff was
accompanied by him, Sh. Sharvan Kumar, Sh. Om Prakash
and Sh. Arvind Kumar. The witness denies the suggestion
that the rent deed was not executed in the presence of the
defendant and the same does not bear the signatures of the
defendant.
10. Though the defence of the defendant was struck off,
yet the plaintiff has to prove its case on merits and satisfy the
court that the plaintiff is entitled for the relief claimed in the
suit. The present suit is filed by the plaintiff on 10/10/2019
and the ExPW1/2 was executed by the defendant on
03/06/2019 and rent agreement ExPW1/4 was also executed
on 04/06/2019. Thus, the suit filed by the plaintiff is within
limitation.
11. Plaintiff did not depose as a witness and the evidence
was led by PW1, who is the power of attorney holder of the
plaintiff. PW1 stated that he is maternal uncle of the plaintiff
and he has been participating in the negotiations between the
parties for purchase of the suit property since the beginning
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Sh. Arun Kumar vs. Smt. Badrun Nisha
and therefore, he is well aware with the facts of the present
matter. No suggestion was given to the witness by the
defendant that the witness has no personal knowledge of the
transactions between the plaintiff and the defendant.
12. Ld. counsel for the defendant has argued that the
plaintiff has not come before the court with clean hands and
suppressed the true and material facts. It is argued on behalf
of the defendant that the sale deed and the rent agreement
qua the suit property has been fraudulently and deceitfully
obtained by the plaintiff in his favour. Reliance is placed by
the defendant on the judgment dated 22/12/2010 passed in
CS (OS) No. 166 of 1977 titled as Swarn Singh vs. Surender
Kumar and ors.
13. In cross examination of PW1, the defendant has not
given any suggestion that the Ex. PW1/2 was not signed by
her, which shows that the defendant is not disputing her
signatures on Ex. PW1/2. Further a suggestion has been
given to PW1 that the sale deed was executed by the
defendant on the condition that on refund of Rs.2.60 lakhs
by the defendant, the defendant is entitled for re-transfer of
the suit property in her favor, which was denied by the
witness.
14. Perusal of the ExPW1/2 shows that the same is
registered document and no such fact found mention in the
sale deed as ExPW1/2 that the defendant is entitled to get the
Suit NO. 232/19 Page 18 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
re-transfer of the suit property on payment of Rs.2.60 lakhs
to the plaintiff. It is settled law that in terms of section 91 of
the Indian evidence act that when evidence relates to
contracts, grants and other the depositions of the property
reduced as a document, then no evidence is required to be
given for proof of this matter except the document itself.
Thus, the plaintiff has successfully proved Ex.PW1/2. The
ratio of the judgment dated 22/12/2010 relied upon by the
defendant passed in CS (OS) No. 166 of 1977 titled as
Swarn Singh vs. Surender Kumar and ors is not applicable to
the facts of the present case. The plaintiff has proved that he
is the owner of the suit property and is entitled to the
possession of the suit property.
15. Perusal of the ExPW1/4 shows that the same is a rent
agreement executed between the plaintiff and the defendant.
PW1 is neither a signatory of the document nor the witness
of the document. The defendant has given a suggestion to the
PW1 that the said rent agreement does not bear the
signatures of the defendant. However, the suggestion was
denied by the PW1. It is no longer res integra that mere
filing and exhibiting document cannot be held to be a due
proof of its content. The Supreme court in Narbada Devi
Gupta v. Birendra Kumar Jaiswal, (2003)8 SCC 745
"16....The legal position is not in dispute that mere
production and marking of a document as exhibit by the
court cannot be held to be a due proof of its contents. Its
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Sh. Arun Kumar vs. Smt. Badrun Nisha
execution has to be proved by admissible evidence, that
is, by the "evidence of those persons who can vouchsafe
for the truth of the facts in issue"..."
It is the duty of the party to lead best evidence,
however, plaintiff has failed to examine any of the witness,
who has signed the Ex.PW1/4, nor has appeared as a witness
himself. Plaintiff was required to prove the contents of the
Ex.PW1/4, which could only be proved by somebody who
knows about the document itself or who was a party to
making the document or had verified the document or
approved it or signed it with knowledge of its contents.
16. Further, perusal of the document shows that though
the sale deed was executed for an amount of Rs. 2.60 lakhs,
rent of the premises has been shown to be Rs. 40,000/- per
month. A civil suit is decided on the basis of probabilities.
The Court in a civil suit has to weigh the probabilities as a
prudent man faced with conflicting probabilities concerning
a fact situation will act on the supposition that the fact exists.
In this process, the court first has to fix the probabilities and
thereafter to weigh the same to determine in favor of which
party, the preponderance of probabilities lies. In the present
case, applying the test of reasonableness, it seems
improbable that that the property which has been purchased
at the price of Rs. 2.60 lakhs will be put the rent @
Rs.40,000/- per month. The plaintiff has, thus, failed to
prove ExPW1/4.
Suit NO. 232/19 Page 20 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
17. Thus, the court is of the considered opinion that the
plaintiff is not entitled to decree of Rs.1.60 lakhs being
arrears of the rent @ 40,000/- per month. Plaintiff has also
claimed the mesne profit @ 500/- per day for a period of
07/09/2019 to 10/10/2019. However, except for self serving
testimony of the plaintiff's witness, no evidence has been led
by the plaintiff with regard to prove the rate of rent in the
area. The Hon'ble High court in Hindustan Petroleum
Corporation Ltd. Vs. Mohanjit Singh (Deceased)
Through Legal Heirs, 2019 SCC OnLine Del 9419 has
held as under:
31. Reference with advantage can also be made to
the judgment of the Division Bench of the Kerala
High Court in K.R. Saraswathi Amma v. S.
Thankappan Pillay 1977 SCC OnLine Ker 112
reiterating as under:--
"It is pointed out on behalf of the 1 st Defendant that the claim
made in the plaint in respect of mesne profits is only at the rate
of Rs. 5,000 per annum and it is contended that the decree
cannot award anything more. This is to misunderstand the
nature of the claim for mesne profits made in this particular
case and the nature of such a claim in general. Having regard
to the definition of 'mesne profits' in Section 2(12) of the Code,
it is apparent that mesne profits are something which a
Plaintiff cannot evaluate and which it is solely for the court to
determine on the evidence before it. As in a suit for an account
the Plaintiff can only mention rough figure as the amount
which will be found due to him, and that is why the second
paragraph of Order VII Rule 2 of the Code makes an exception
Suit NO. 232/19 Page 21 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
to the general principle laid down in the first paragraph that in
a suit for money the plaint shall state the precise amount
claimed and says that when the claim is for mesne profits, or
for an amount which will be found due on taking unsettled
accounts, the plaint need only state approximately the amount
sued for. Section 11 of the Court Fees Act, 1870 makes the
position even clearer. It shows that the claim in a suit for
mesne profits is only a rough estimate even if a precise amount
is stated and that it is for the court to ascertain is the true
amount. And this can be in excess of the amount claimed. For,
it says that in suits for mesne profits or for an account, if the
profits or amount decreed are in excess of that claimed, the
decree shall not be executed until the difference in court fee is
paid. In this particular case, the relief sought in respect of the
mesne profits (by prayer No. 2 in the plaint is that the court
should award all profits received by the Defendants from the
property, both before and after the institution of the suit, at the
rate estimated by the Plaintiff at 35,625 fanams (Rs. 5,000) per
annum. This, it seems to us, is just what is required by Order
VII Rule 2 of the Code".
32. This Court in Holiday Home v. R.P. Kapur 2010 SCC
OnLine Del 4481 has held that enquiry under Order 20 Rule
12 of the CPC is warranted only where the landlord has not
been able to adduce sufficient evidence during trial; else, if
sufficient evidence during trial has been led, there is no need
for a separate enquiry under Order 20 Rule 12. Similarly in
Kavita Gambhir v. Hari Chand Gambhir 162 (2009) DLT 459
it was held that it is in the discretion of the Court whether
mesne profits are determined along with the adjudication for
the relief of recovery of possession or an enquiry thereto has to
be ordered after the adjudication as to the recovery of
possession. Thus it is not as if the higher rate than claimed can
be given only in an enquiry and not if the issue of mesne profits
is decided along with the issue of recovery of possession of the
premises.
Suit NO. 232/19 Page 22 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha
18. The Hon'ble High Court in Chander Bhan Dass Vs.
Shri Ram Nath Sharma2011 SCC OnLine Del 5486 held
as under:
9. There is also an issue with respect to the claim of mesne
profits. I may note that except a self serving deposition of the
appellant that rents of same premises will be Rs. 5,000/- per
month, no other evidence was led to prove the rate of rent in
the area. However, I may note that in the evidence by way of
affidavit, filed on behalf of the respondent/defendant, there is
no averment that the rate of rent in the area is not Rs. 5000/- per month. Since, however, the onus of proof to prove mesne profits was on the appellant/plaintiff, therefore, I cannot grant an amount of Rs. 5000/- per month, though the property is situated in prime location in Delhi, namely, Pahar Ganj. In the facts and circumstances of this case I therefore grant mesne profits @ Rs. 500/- per month for a period of three years prior to the date of filing of the suit, pendente lite and future till the respondent hands over possession of the suit premises to the appellant/defendant.
19. In view of the established legal preposition, this court is of the opinion that as the plaintiff has failed to lead cogent evidence as to the quantum of mesne profit, this court may take judicial note and determine the damages/mesne profit to which the Plaintiff is entitled. In the present case, it is admitted fact that the property is commercial in nature and the area of the suit property is 4.27 sq mtr. In view of the facts and circumstances of the case, the court is of the considered opinion that ends of justice would be met if the plaintiff is granted mesne profit/damages @ 4000/- per Suit NO. 232/19 Page 23 of 25 Sh. Arun Kumar vs. Smt. Badrun Nisha month from date of filing of the present suit i.e.10/10/2019 till handing over of the possession of the suit property.
RELIEF
20. In view of the discussions, as adumbrated above, I hereby pass the following :: - FINAL ORDER - ::
A. The decree of possession of suit property i.e. shop having dimension approximately 4'.6" x 10' having total area approximately 4.27 sq. meter situated on the ground floor without roof right being part of property bearing no. E-16/1262, (Old No. T-4507), Padam Singh Road, Bapa Nagar, Karol Bagh, New Delhi, as shown in ExPW1/3, is passed in favour of plaintiff and against the defendant.
B. A decree of recovery for misuse, damages/mesne profit and for unlawful and unauthorised use and occupation of the suit property is passed in favour of the plaintiff and against the defendant @ Rs.4000/- p.m. from 10/10/2019 till the possession is handed over by the Defendants to the plaintiff. The plaintiff is directed to pay the court fee on the said amount till the date of decision and only then decree would be executable in respect of this relief.
C. A decree of permanent injunction is passed in favour of plaintiff and against the defendant restraining the defendant from sub-letting, assigning or otherwise partying with the possession of the suit property.Suit NO. 232/19 Page 24 of 25
Sh. Arun Kumar vs. Smt. Badrun Nisha Decree sheet be prepared accordingly. File be consigned to Record Room, after due compliance.
Announced in the open court on this 10th Day of May, 2022.
(Alok Shukla) ADJ-07 (Central) Tis Hazari Courts, Delhi Suit NO. 232/19 Page 25 of 25