Delhi District Court
Mrs. Kailash Suneja vs Sh. Pradeep Kumar Ganeriwal on 18 November, 2013
IN THE COURT OF SH SUNIL K AGGARWAL: ADDL. DISTRICT JUDGE
(CENTRAL) 10: DELHI
Suit No. : 253/05
Mrs. Kailash Suneja
W/o Sh. C. L. Suneja,
R/o H15, Maharani Bagh,
New Delhi110065 .....Plaintiff
(Through her son and attorney Mr. K. L. Suneja)
VERSUS
Sh. Pradeep Kumar Ganeriwal
7, Hungerford Street, Kolkata07
Also at:
Ground Floor, G4, Maharani Bagh,
New Delhi110065 .....Defendant
Plaint presented on 12.12.2005
J U D G E M E N T:
1. Present suit for ejectment of the defendant, recovery of mesne profits/damages and permanent injunction has been filed by the plaintiff through her son and attorney Sh. K. L. Suneja on the allegations that the defendant was a tenant in respect of the ground floor of House No. G4, Maharani Bagh, New Delhi together with front lawns, West side open space, one garage on the SouthWest side, one servant quarter on top of the garage, one servant's toilet near the side garage and common use of the toilet on top of the garage, hereinafter called 'the suit premises', under Mst. Khatoon Quamarain. The said owner/landlady had agreed Suit no. 253 of 2005 Page no. 1 of 33 to sell the entire house no. G4, Maharani Bagh, New Delhi to the plaintiff vide an agreement to the effect that upon paying the entire settled sale consideration, the plaintiff will be put into constructive possession of the property, including the suit premises and entitled to realize rent from the tenant and take any action against them and/or to deal with them in any manner. The Appropriate Authority, Income Tax Department however had preemptively purchased the said property under Section 269 UD (I) of the Income Tax Act on 25.10.1993. The defendant had represented to be a tenant on the ground floor of the property before the said Authority and started paying rent of the suit premises. The plaintiff had filed a Writ Petition in the Hon'ble High Court of Delhi challenging the purchase order of Appropriate Authority. Vide judgment dated 17.12.1997 passed therein the purchase order of said Authority was quashed. The Special Leave Petition filed by the Appropriate Authority against the judgment of the Hon'ble High Court of Delhi was dismissed by the Hon'ble the Supreme Court of India on 07.08.2001. The High Court of Delhi had then directed the Authority to hand over the possession of subject property and all the title deeds including the agreement to the plaintiff vide order dated 22.01.2002 which was complied with on 28.02.2002, after the plaintiff had paid the entire sale consideration of the property. She had thus become the landlady thereof.
2. The defendant was a tenant of the suit premises at the rent of Rs. 3,000/ per month. Vide legal notice dated 24.04.2002, the plaintiff requested him to deal with her in relation to the suit premises besides notifying an enhancement in his rent by 10% under Section 6A & 8 of The Delhi Rent Control Act. The defendant was called upon to pay rent @ Rs. 3,300/ per month after 30 days of receipt of the notice. When the defendant failed to comply with said notice, another demand notice Suit no. 253 of 2005 Page no. 2 of 33 dated 15.07.2002 was issued to him. On his failure to pay the rent to the plaintiff an Eviction Petition under Section 14(1)(a) of The Delhi Rent Control Act was filed by the plaintiff on 17.03.2003. An order under Section 15(1) of Delhi Rent Control Act was passed therein by the Addl. Rent Controller on 23.07.2005 directing the defendant to pay or deposit arrears of the rent @ Rs. 3,000/ per month from March, 2002 and Rs. 3,300/ per month with effect from June 2002. The defendant has challenged said order before Rent Control Tribunal by filing an appeal.
3. Another notice of enhancement of rent under Section 6A & 8 of The Delhi Rent Control Act was issued to the defendant on 28.04.2005 taking rent of the suit premises to Rs. 3,630/ per month from 01.06.2005. A legal notice dated 16.08.2005 was also served on him determining his tenancy of the suit premises where after his occupation thereof turned illegal and unauthorized. The defendant is liable to pay the use and occupation charges of the suit premises @ Rs. 75,000/ per month which is its prevailing letting value. The money claimed in the suit comprises outstanding rent for March to May, 2002 @ Rs. 3,000/ per month; June, 2002 to May, 2005 @ Rs. 3,300/ per month; Rs. 3,630/ per month from June, 2005 to September, 2005 and mesne profits @ Rs. 75,000/ per month for use and occupation of the suit premises for October and November, 2005. Interest @ 15% per annum on the outstanding rent has been claimed till the date of filing of the suit besides interest on all accrued amounts @ 24% per annum for period thereafter till realization.
4. It is claimed that the defendant is putting up at Kolkata and keeping the suit premises locked in order to defeat the rights of the plaintiff. It is apprehended that he will induct some other persons into possession of the suit premises and Suit no. 253 of 2005 Page no. 3 of 33 complicate the matter. He thus needs to be restrained from inducting any other person into the suit premises.
5. The defendant has contested the suit. The preliminary objections of the plaintiff having no link with the suit premises: absence of relationship of landlady and tenant between the parties and bar of Section 50 of The Delhi Rent Control Act to suit in view of monthly rent of suit premises being Rs. 3,000/ per month, have been raised. The plaintiff is neither owner nor landlady of the suit premises. No sale/conveyance deed of the property has been executed in her favour by its owners. The property has been built on a leasehold plot of land allotted to Maharani Bagh Cooperative House Building Society by the Delhi Development Authority. Mst. Khatoon Quamarain was the registered sublessee of the property in question. Transfer of such leasehold property is not permissible without the prior permission of the DDA. While denying the authenticity of agreement dated 01.07.1993, it is contended that Rs.10,00,000/ given as advance to her by the plaintiff in pursuance of said agreement, was taken back by the plaintiff whereupon the agreement stood terminated. This fact was not disputed by the plaintiff in eviction proceedings. No specific agreement for sale of property in question was executed in favour of the plaintiff either by Mst. Khatoon Quamarain or her legal heirs therefore plaintiff has no right, title or interest in the same. Moreover, a mere agreement for sale does not convey any title in the property.
6. It is alleged that the present suit is malafide where under the plaintiff intends to get herself declared owner of property no. G4, Maharani Bagh, New Delhi which relief she could not get from other courts. The suit has been filed to Suit no. 253 of 2005 Page no. 4 of 33 harass the defendant by suppressing the material facts with a motive to exhaust and coerce him to vacate the tenancy premises by entangling him in protracted litigation.
7. The defendant claims to be a tenant in respect of entire ground floor premises of G4, Maharani Bagh, New Delhi together with front lawns, west side open space, one garage on the southwest side, one servant quarter on top of the garage, one servant's toilet near the side garage and common use of the toilet on top of the garage beside right to use the passage of eastern side of the property, common services , facilities and amenities as well as the use of roof of the building, which he had taken on rent from Mst. Khatoon Quamarain in 1985 for composite purpose. The rent of the tenancy premises stand paid to the landlady till December, 1993 @ Rs. 3,000/ per month. Mst. Khatoon Quamarain is stated to have entered into a sale agreement of property in question with plaintiff for a consideration of Rs.45,00,000/ plus unearned increase, on 01.07.1993. On the Appropriate Authority under The Income Tax Act exercising its option under Chapter XXC of The Income Tax Act, the defendant started paying rent to the Chief Commissioner of Income Tax from January, 1994 to March, 2002. The department did not accept rent from him for the subsequent period. On acquisition of the property in question by the Appropriate Authority, the plaintiff sought return of the advance of Rs. 10,00,000/ paid by him to Mst. Khatoon Quamarain, which latter had refunded to her. The sale agreement had thus come to an end and stood determined.
8. Plaintiff had challenged the acquisition of property by filing CWP No. 5220/93 in the Hon'ble High Court of Delhi which was allowed on 17.12.1997 and the Appropriate Authority was directed to issue No Objection Certificate to the Suit no. 253 of 2005 Page no. 5 of 33 parties. The Special Leave Petition filed against the said order was dismissed by the Hon'ble the Supreme Court of India on 07.08.2001. It has been pointed out that the defendant was not impleaded in the said proceedings by the plaintiff. Mst. Khatoon Quamarain had passed away on 07.10.1996 leaving behind her son Sh. Arif Quamarain and daughter Mrs. Razia Grover. None of whom was brought on the record of Hon'ble High Court.
9. The plaintiff had filed CM No. 699/02 in CWP No. 5220/93 for dissuading the Appropriate Authority from demanding interest @ 18% per annum on the consideration of Rs. 45,00,000/. Vide order dated 22.01.2002, the Appropriate Authority was directed to deliver the possession of property in question and all the title deeds, tenancy agreement etc. to the plaintiff and execute conveyance deed in her favour on her depositing Rs. 45,00,000/ with the Authority and other amounts, if any, paid by the Authority. The legal heirs of Mst. Khatoon Quamarain had not been served with the copy of application.
10. The Appropriate Authority had asked the defendant not to deposit further rent with Income Tax Department vide letter dated 27.02.2002 as the property was to be transferred to the plaintiff. The defendant had asked for some clarifications from them vide his letter dated 02.04.2002 of which a vague reply dated 17.04.2002 was received. As Mst. Khatoon Quamarain was found to have passed away on 07.10.1996, on being contacted, her legal heirs denied that the property in question had been transferred. The defendant in this background was in a state of confusion as to whom the rent of suit premises was to be paid as the Income Tax Department could not claim ownership of the property on its transfer and the plaintiff did not Suit no. 253 of 2005 Page no. 6 of 33 have any legal title thereof. As no conveyance deed of the property had been executed in favour of the plaintiff, on the order of Appropriate Authority being set aside, the property reverted to its original owner. The payment of rent of the suit premises by the defendant to a wrong person could have jeopardized his valuable tenancy rights. Since the order dated 22.01.2002 of the Hon'ble High Court of Delhi had a bearing on the interests of the defendant, he had filed CM No. 7481/02 under Section 151 CPC in CWP No. 5220/93 seeking clarification interalia as to whom the rent of suit premises should be paid from April, 2002. The Appropriate Authority had also filed a CM No. 8584/02 for review/modification of same order.
11. The Hon'ble High Court vide order dated 06.09.2002 directed the defendant to deposit the entire outstanding rent of the suit premises up to 30.09.2002, in the court. In pursuance whereof rent for April to September, 2002 @ Rs. 3,000/ per month was deposited. On the review/modification application of the Appropriate Authority, the direction for execution of conveyance deed in favour of the plaintiff was deleted vide order dated 13.09.2002.
12. The defendant paid the rent from October, 2002 to September, 2005 to the actual owners of the property in question i.e. legal heirs of Mst. Khatoon Quamarain in compliance with the instructions of Mrs. Razia Grover in letter dated 20.05.2002. Meanwhile the plaintiff had got notices dated 24.04.2002 and 28.04.2005 served on defendant with ulterior motive in illconceived attempts to create grounds for eviction from the suit premises. A stranger can neither demand nor call for enhancement of rent therefore her demands were voidabinitio. The Defendant had sent their replies dated 11.07.2002 and 14.06.2005 to the plaintiff.
Suit no. 253 of 2005 Page no. 7 of 33 The rent of suit premises therefore continues to be Rs. 3,000/ per month and the same stand paid till January, 2006. With malafide motive and to get herself declared as owner of the property in question, the plaintiff had filed an Eviction Petition against the defendant which was being contested. An order under Section 15(1) of Delhi Rent Control Act passed therein was challenged by the defendant. Vide order dated 23.08.2005, Ld. Additional Rent Control Tribunal had directed the defendant to deposit rent @ Rs. 3,000/ per month in court which may be released to the plaintiff on her returning the bank drafts. The defendant accordingly deposited the rent up to January, 2006 in compliance of said order. On 29.09.2005, the plaintiff had stated to the learned Tribunal that rent will not be withdrawn by her till further orders and till the bank drafts are returned.
13. It is stated that the plaint is liable to be rejected for want of cause of action and money claim is misconceived in view of rent from June, 1994 to March, 2002 having been deposited with Deputy Commissioner of Income Tax; from April, 2002 to September, 2002 in the Hon'ble High Court; from October to September, 2005 have been sent to Sh. Arif Quamarain and Mrs. Razia Grover through bank drafts; from March, 2002 to January, 2006 deposited with Additional Rent Controller in compliance of order of Additional Rent Control Tribunal. It has also been contended that the suit has not been signed, verified and instituted by a duly authorized person as a valid Power of Attorney does not exist in favour of Sh. K. L. Suneja.
14. On merits, the defendant has denied that the plaintiff has paid the entire sale consideration of the property in question of which she has failed to disclose the Suit no. 253 of 2005 Page no. 8 of 33 details. It is controverted that the plaintiff had became entitled to realize rent from the tenant in the property or to initiate any action against them. The receipt of notice dated 15.07.2002 is denied otherwise defendant would have sent its reply as has always been done. It is alleged that the plaintiff has not mentioned the orders passed by Rent Control Tribunal deliberately. The plaintiff had no right to issue legal notices to the defendant for enhancement of rent or to terminate his tenancy. It is also denied that the prevailing letting value of suit premises is Rs. 75,000/ per month or the defendant is liable to pay damages for use and occupation of the suit premises at that rate. The defendant claimed to be actually residing in the suit premises and working for gain. Of course he undertakes extensive travel including to Kolkata for his business purposes. It is denied that he is an unauthorized occupant in the suit premises. On these averments, dismissal of the suit has been urged.
15. The plaintiff has reiterated the contents of the plaint and rebutted the adverse contents of the written statement. It is asserted that on the plaintiff paying the entire sale consideration of property in question, she has became landlady of the suit premises and the defendant is a tenant under her. The question of ownership is not relevant for asking the tenant for enhancement of rent or terminating his tenancy. The defendant has no locusstandi to challenge the sale agreement of the property in question. He is only a tenant in a portion thereof. There was no question of the agreement getting determined. It rather subsisted in the light of orders passed by Hon'ble High Court of Delhi and the Supreme Court of India. The legal heirs of Mst. Khatoon Quamarain have filed affidavits in eviction proceedings affirming the sale agreement executed by their predecessorininterest in favour of the plaintiff. No fresh agreement for sale therefore was required to be executed in respect of property Suit no. 253 of 2005 Page no. 9 of 33 in question.
16. Plaintiff denied having asked Mst. Khatoon Quamarain to return the advance amount of Rs.10,00,000/ received by her. In fact the Appropriate Authority, Income Tax Department had paid the entire consideration on preemptive purchase of the property to her where after she had refunded the sum of Rs. 10,00,000/ to the plaintiff which was accepted without prejudice to her rights and contentions. Had the sale agreement been terminated, Hon'ble High Court of Delhi and The Supreme Court of India would not have passed judgments in favour of the plaintiff nor would the legal heirs of Mst. Khatoon Quamarain have tendered affidavit affirming the same. The possession of the property in question was delivered o the plaintiff by the Appropriate Authority on 28.02.2002 after she had paid the entire sale consideration to them and they had rightly refused to receive rent from defendant after February, 2002. Although, the defendant had no right to seek information from Appropriate Authority yet he indulged in wasteful exercise with a view to protract his illegal possession of the suit premises. The contents of letter dated 17.04.2002 of the Appropriate Authority have been purposely concealed from the written statement as he had been advised to pay rent to the plaintiff.
17. There was no confusion regarding the person entitled to rent of the suit premises as only the plaintiff was demanding it from the defendant projecting herself to be the landlady but the defendant portrayed a state of confusion in order to avoid payment of rent to her and to perpetuate his illegal possession of the suit premises. It is denied that the legal heirs of Mst. Khatoon Quamarain had disputed the transfer of property in question in favour of the plaintiff nor any letter dated 20.05.2002 had Suit no. 253 of 2005 Page no. 10 of 33 been written by Mrs. Razia Grover. In fact both the legal heirs had handed over the original demand drafts sent to them by the defendant, to the plaintiff which the plaintiff had offered to return to the defendant. In any case, the same are stale now. Plaintiff denied being a stranger qua the property in question or that the notices issued by her to the defendant were extraneous.
18. On the basis of pleadings, following issues for trial were framed on 26.04.2006:
1. Whether the defendant is a tenant in the suit premises at a monthly rent of Rs. 3,000/ and is protected under the provisions of the Delhi Rent Control Act?
OPD.
2. Whether the defendant is a tenant @ Rs. 3,630/, if so, to what effect? OPD.
3. Whether the tenancy of the defendant has been legally terminated? OPP.
4. Whether there exists no relationship of landlord and tenant between the parties? OPD.
5. Whether the plaintiff is owner of the suit property?
OPP.
6. Whether the petition has been signed, verified and instituted by a duly authorized person?
7. Whether the plaintiff is entitled to decree of ejectment against the defendant in respect of premises no. G4, Suit no. 253 of 2005 Page no. 11 of 33 Maharani Bagh, New Delhi?
OPP.
8. Whether the plaintiff is entitled to a decree of a sum of Rs.
3,32,198/ along with interest as prayed for?
OPP.
9. Whether the plaintiff is entitled to mesne profits/damages at the rate claimed in the suit w.e.f. 01.12.2005 along with interest? OPP.
10. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?
OPP.
11. Relief.
19. In order to substantiate her case the plaintiff has examined her son & attorney Sh. K. L. Suneja as PW 1 who besides narrating the case, proved Power of Attorney date 14.11.2005 Ex. PW 1/1, Site Plan Ex. PW1/2, Agreement for sale and purchase Ex. PW 1/3, Order dated 07.08.2001 of Hon'ble The Supreme Court of India Ex. PW 1/4, Order dated 22.01.2002 of Hon'ble High Court of Delhi Ex. PW 1/5, Receipt of handing/taking over of immovable property dated 28.02.2002 Ex. PW 1/6, Letter dated 15.02.2002 from Income Tax Department Ex. PW 1/7, Legal notice dated 24.04.2002 Ex. PW 1/8, Legal notice dated 11.07.2002 Ex. PW 1/9, Copy of legal notice dated 15.07.2002 Ex. PW 1/10, Legal Notice dated 28.04.2005 Ex. PW 1/13, Legal notice dated 14.06.2005 Ex. PW 1/14, legal notice dated 16.08.2005 Ex. PW 1/15, legal notice dated 26.09.2005 Ex. PW 1/16, Sale deed Suit no. 253 of 2005 Page no. 12 of 33 dated 10.02.2006 Ex. PW 1/17, Affidavit dated 29.05.2004 of Sh. Arif Quamarain Ex. PW 1/19 and was shown the site plan Ex.PW1/D1 of the suit premises by the defendant.
20. Sh. Tanveer Masoor, Inspector, Appropriate Authority, Income Tax Office, New Delhi has been examined as PW2 and proved letter written by the Senior Account Officer as Ex. PW2/1 besides confirming the memorandum and letter Ex. PW1/6 and Ex. PW1/7 respectively.
21. Sh. Krishan Kant, UDC from Delhi High Court appeared as PW3 and proved the copy of order dated 22.01.2002 passed in WP No.5220/1993 as Ex. PW3/1 and order dated 13.09.2002 as Ex. PW3/2.
22. Sh.Vikas, Asst. Ahlmad from the court of Addl. Rent Controller confirmed the order Ex. PW1/11 passed in Eviction Petition No.733/2006. Sh.Yogender Kumar, Asst. Ahlmad of the same court was examined as PW5 to confirm the order dated 23.07.2005, Ex. PW1/12 passed in the eviction petition by Rent Control Tribunal.
23. PW6 Sh. Hari Om Tyagi had proved his authority letter issued by his employer as Ex. PW6/1 and tendered the Lease Agreement dated 17.08.2004 Mark A and hire agreement Mark B in respect of property no. G10, Maharani Bagh, New Delhi. The plaintiff had closed her evidence on 26.11.2007.
24. On his part, the defendant has examined himself as DW1 and tendered Suit no. 253 of 2005 Page no. 13 of 33 the site plan of the suit premises, Ex. PW1/D1, letter dated 02.04.2002 with bank draft Ex. DW1/1, letter dated 20.05.2002 Ex. DW1/2, order dated 06.09.2002 passed by the Hon'ble High Court Ex. DW1/3, letter dated 10.09.2002 Ex. DW1/4, order date 23.08.2005 and 29.09.2005 passed by the Additional Rent Control Tribunal as Ex. DW1/5 and Ex. DW1/6, deposit challans Ex. DW1/7 to Ex. DW1/12 and copy of order dated 23.12.2006 whereby the eviction petition was withdrawn by the plaintiff Ex. DW1/13.
25. DW2 Sh. Karan Singh, LDC from the Cooperative Societies Branch of DDA proved the allotment of plot by DDA and mutation letter dated 25.06.2004 in favour of legal representatives of allottee of the property in question Ex.DW2/1, conveyance deed dated 30.01.2006 Ex. DW2/2, death certificate of Mst. Khatoon Quamarain Ex. DW2/3, property tax receipt and application for conversion to freehold Ex. DW2/4, application for conversion by the legal heirs with relevant documents Ex. DW2/5, copy of letter dated 01.06.2004 written by the Maharani Bagh Cooperative Society to DDA Ex. DW2/6 and copy of perpetual sub lease dated 17.07.1965 as Ex. DW2/7.
26. DW3 Sh. Jacub K.K., office Manager, Maharani Bagh Cooperative House Building Society Ltd. has proved the application for change of name of plaintiff in the records of society as Ex. DW3/1, letter dated 22.09.2008 of the plaintiff Ex. DW3/2, letter dated 24.07.2008 of the society to the defendant as Ex. DW3/3, maintenance bills Ex. DW3/4 to Ex. DW3/10, letters sent to the legal heirs of allottee Ex. DW3/11 to Ex. DW3/15, copy of letter dated 27.05.2002 of Mrs. Razia Grover Ex. DW3/16, affidavit dated 25.06.1986 of Mst. Khatoon Qumarain Suit no. 253 of 2005 Page no. 14 of 33 Ex. DW3/17, letter dated 01.06.2004 sent by the society to DDA Ex. DW3/18, letter dated 16.02.2002 sent to the plaintiff Ex. DW3/P1, letter dated 23.07.2002 and 15.08.1999 sent to Mrs. Razia Grover Ex. DW3/P2 and Ex. DW3/P3 respectively and letter dated 12.08.2002 received from the plaintiff Ex. DW3/P4.
27. Sh. Shaukaran Chouhan, Asst. Zonal Inspector, Property Tax Department, MCD was examined as DW4 to prove the show cause notice dated 23.02.2007 issued in respect of the property in question Ex. DW4/1, demand notice Ex. DW4/2, letter dated 08.07.2002 received from the Income Tax Department Ex. DW4/3, its envelope Ex. DW4/4, letter dated 14.06.2002 sent to Income Tax Department Ex. DW4/5, letter of April, 2002 received from Appropriate Authority Ex. DW4/6, letter dated 01.02.2002 received from Mrs. Razia Grover Ex. DW4/7, entries of properties of Maharani Bagh in the register Ex. DW4/8 and copy of bill Ex. DW4/9.
28. DW 5 Sh.Anil Tomar, LDC from the office of Appropriate Authority, Income Tax Department tendered application for clarification of order dated 22.01.2002 Ex. DW5/A, Copy of SLP Ex. DW5/B, letters dated 30.11.1993 and 25.10.1993 sent to Mst. Khatoon Qumarain Ex. DW5/C and Ex. DW5/D, order dated 25.10.1993 Ex. DW5/E, Show Cause notice dated 29.09.1993 Ex. DW5/F, letter dated 14.10.1993 received from the defendant Ex. DW5/G, order passed by the Department on conclusion of proceedings Ex. DW5/H and the memorandum dated 28.02.2002 as Ex. DW5/I.
29. DW6 Sh. Avdesh Kumar Rai, Ahlmad from the court of Additional Suit no. 253 of 2005 Page no. 15 of 33 Rent Controller has proved the copies of letters and bank drafts submitted in eviction petition no. 773/2006 by/on behalf of the defendant and the postal documents as Ex. DW6/1 to Ex. DW6/46.
30. Sh. Puneet Malhotra, LDC from the Record Room of District Courts proved the copy of order dated 29.09.2005 as Ex. DW7/1 passed in appeal no. 376/2005 by Ld. ARCT.
31. DW 8 Sh. Rakesh Kumar, Civil Nazir of the court of Rent Controller (Central) admitted that rent vide challans Ex. DW1/12 A to Ex. DW1/12 E had been deposited in the court which was released vide voucher dated 27.09.2006.
32. DW9 Sh. Suresh Prashad, Civil Nazir of the court of Additional Rent Controller (North), Tis Hazari Delhi confirmed the deposit of rent in court through challan Ex.DW1/12F to Ex.DW1/12P.
33. The evidence of defendant was closed by order on 05.08.2010.
34. I have heard Bakshi Sh. Rang Singh, Advocate, learned Counsel for the plaintiff, Sh. Naveen Kumar Choudhary, Advocate, learned Counsel for the defendant and perused the brief synopsis submitted by them on behalf of the parties besides carefully perusing the file. The issuewise findings of court are recorded hereunder:
35. Issue No. 6: Suit no. 253 of 2005 Page no. 16 of 33 35(a) Pleadings on behalf of the plaintiffs were signed, verified and filed by her son Sh. K. L. Suneja on the strength of Power of Attorney dated 14.11.2005 Ex. PW 1/1. It has been argued on behalf of the defendant that the plaint was signed by the said attorney on 12.11.2005 even prior to his appointment as her attorney by the plaintiff. As such the plaint having been signed without any authorization of the plaintiff is nonest. Learned Counsel for the plaintiff on the other hand argued that the supporting affidavit was signed by the attorney on 06.12.2005 and the suit was instituted on 12.12.2005 by which time Sh. K. L. Suneja had been conferred with appropriate authorization vide Ex. PW 1/1, therefore the arguments of defendant do not hold water.
35(b) It is clear from the perusal of plaint and the supporting affidavit that both were prepared prior to 14.11.2005. No question was put to PW 1 in cross examination to discern that the plaintiff herself had not given instructions to her counsel to prepare them. Undoubtedly the plaint continues to bear the date 12.11.2005 on its last page while the date of affidavit is 06.12.2005 when it was got attested after obtaining signatures of the attorney. Apparently, the date already put on the plaint was not rectified as the son of plaintiff must have simultaneously signed the plaint as well as the supporting affidavit. By the time both were filed in the court on 12.12.2005 under signatures of the son of plaintiff, he had been duly authorized. The objection therefore is overruled. The execution of Power of Attorney Ex. PW 1/1 by the plaintiff in his favour has been adequately proved by PW 1. He has been duly authorized interalia to sign and verify the pleadings and institute the suit. There is no material to show revocation and even alteration in the terms of Power of Attorney by the plaintiff at any stage. Hence the obvious conclusion is that the suit Suit no. 253 of 2005 Page no. 17 of 33 has been signed, verified and instituted by a competent person. Issue is decided in affirmative.
35(c) Although not directly related to this issue, yet the objection of defendant to the attorney testifying in this case on the basis of Power of Attorney is taken up here.
35(d) The plaintiff having not examined herself in the suit is also being resented. Placing reliance upon '1999 (3) SCC 573' holding that 'where a party to the suit does not appear in witness box and states his own case on oath and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct'.
35(e) The plaintiff in this case was of about 81/82 years of age in 2007 when PW 1 was examined. Only because of her ripe age and inability to do all the acts, deeds and things required to be done for filing and pursuing the suit, she had executed Power of Attorney Ex. PW 1/1 in favour of her son. It cannot therefore be said to be one of those cases, where the plaintiff has abstained from the court merrily or with motive to save her from tedious crossexamination. It has to be appreciated that old age generally limits the movements of people. Required physical fitness cannot be expected in a person of the age of more than 80 years. The adverse presumption against the case of plaintiff therefore cannot be drawn. It has been held in Bhimappa Vs Alilisab, AIR 2006 Karnataka 231 that a Power of Attorney holder is competent witness under Section 118 of Evidence Act. His evidence cannot be refused to be taken into consideration on the ground that the parties to the suit i.e. Suit no. 253 of 2005 Page no. 18 of 33 plaintiff or defendant do not choose to appear as witness in the witness box. 35(f) It has next been argued that the word 'act' employed in Order III Rules 1 & 2 CPC confines only in respect of acts done by the Power of Attorney holder in exercise of the power granted by the instruments. The term 'acts' would not include deposing in place and instead of the principal. Reliance in this behalf is placed on 'Sakunthala Vs. Anandarajan, (2008) 1 MLJ 354, 'Janki Vashdeo Bhojwani Vs. Induslnd Bank Ltd., AIR 2005 SC 439' and 'Man Kaur Vs. Hartar Singh Sangha, (2010)10 SCC 512. It is thus contended that the son of plaintiff could not have appeared in witness box and deposed on her behalf taking her place. Moreover, the Power of Attorney Ex.PW 1/1 does not empower him to depose in this case. In the absence of specific power, the general terms of Power of Attorney cannot be read for the purpose of imposing authority on the attorney to depose on behalf of the principal. Statement of PW 1 therefore cannot be read.
35(g) Apparently PW 1 has deposed various facts that had existed place much prior to 14.11.2005 when Power of Attorney was executed in his favour. To be a competent witness for deposing in a case one is required to have personal knowledge of facts that he must have perceived through any of his sensory organs. Such a person does not require to be formally authorized by the litigant for deposing in the case. It was observed in Hardev Singh Vs Surjit Kaur, 2008(3) RCR (Civil) 631 that an Attorney can appear as a witness on behalf of the principal and depose about the facts which are in his personal knowledge or about those acts which he had performed as an attorney on behalf of the principal, but attorney cannot appear as witness to depose about the facts which are in the personal knowledge of the Suit no. 253 of 2005 Page no. 19 of 33 principal. It is then immaterial that Power of Attorney Ex. PW 1/1 is silent about the competence of attorney to appear as a witness. Although PW1 has appeared in the suit filed by his mother but not to substitute her as a witness. Since he himself had dealt with the matter at its various stages and therefore had personal knowledge of crucial facts. The testimony therefore does not fall within the prohibited category specified in the cited judgments. The version of witness categorically indicates that he was practically involved in dealing with/handling every aspect of the matter right from the date of execution of agreement dated 01.07.1993 and therefore cannot be said to be a late entrant or outsider who has deposed on the basis of hearing the facts and details from the plaintiff. It is also to remind ourselves that females of the generation of plaintiff used to be dependent upon male members of the family for getting work of the nature of purchasing property. There is therefore nothing unusual in plaintiff herself remaining behind the curtain in pursuing this suit.
36. Issue No.5: 36(a) As soon as the plaintiff had applied for the Income Tax Clearance Certificate in pursuance of agreement to purchase the property in question, Appropriate Authority under the Income Tax Act exercised the option to purchase the property under Section 269 UD(1) of the said Act by passing order dated 25.10.1993 and making payment of full consideration of Rs. 45,00,000/ to Mst. Khatoon Quamarain. Aggrieved by that order the plaintiff had filed CWP No. 5520/1993 in the Hon'ble High Court of Delhi against the appropriate authority and the previous owner. Since the consent/consultation /approval of the defendant was neither necessary nor required to complete the deal, he had not been impleaded. It was allowed on 17.12.1997 and NOC for sale of property in question was directed to Suit no. 253 of 2005 Page no. 20 of 33 be issued to the plaintiff by the Income Tax Authority. The Special Leave Petition filed by the Income Tax Department was dismissed by Hon'ble the Supreme Court of India vide order dated 07.08.2001, Ex. PW 1/4. On deposit of the consideration amount by the plaintiff, the Appropriate Authority was directed to hand over all the documents pertaining to the property in question in their custody and deliver possession thereof. It was complied with on 28.02.2002 in terms of letter Ex. PW 1/6. Since the property was leasehold from DDA till that time, although it cannot be said that she had become its owner on that date yet had certainly acquired the right to receive rent from the tenants of property and to initiate any action and/or deal with them in any manner under the agreement Ex. PW 1/3 on cloud over her entitlement having been blown over.
36(b) It was only after the leasehold property was got converted into freehold by the legal heirs of last sublessee and the execution of sale deed dated 10.02.2006 Ex. PW 1/17 by Sh. Arif Quamarain and Ms. Razia Grover that the plaintiff finally became its owner. Learned Counsel for the defendant has relied upon the ratio in 'Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana, 183 (2011) DLT 1 (SC)' to contend that mere an agreement to sell does not create any right, title or interest in favour of the prospective purchaser in the property agreed to be sold. The transfer of immovable property by way of sale can only be by deed of conveyance. In the absence of such duly stamped and registered deed, no right, title or interest in any immovable property can be transferred. Further any contract of sale would fall short of the requirement of Section 54 & 55 of The Transfer of Property Act and will not confer any title nor transfer any interest in immovable property. The plaintiff therefore had not become owner of the property in question on the date when she had Suit no. 253 of 2005 Page no. 21 of 33 served notice of enhancement of rent nor when the present suit was filed. On behalf of the plaintiff the ratios in Sushil Kanta Vs Rajeshwar Kumar, 1999 RLR 289 and Gian Chand Gupta Vs Coir Board, RFA No. 424/2011, decided by Hon'ble High Court of Delhi on 14.09.2011, have been pressed into service holding that for purposes of Section 14 (1)(e) of Delhi Rent Control Act, an owner need not be absolute owner requiring registered sale deed in his favour. It is enough if he has paid for the built up tenancy premises. A restricted meaning cannot be given to 'Owner' for purposes of the Act.
36(c) So far as the legal proposition canvassed on behalf of the defendant is concerned; there can be no quarrel with it. The case in hand however is not one of transfer of property on the basis of Sale Agreement/General Power of Attorney/Will which primarily was the subject of Suraj Lamp case. Only in order to get the requisite clearance/permissions that the plaintiff had pursued the matter with Income Tax Authority where it got stalled for few years only to be granted after judicial verdict. The original owner Mst. Khatoon Quamarain is not shown to have disputed/opposed the terms of agreement Ex. PW 1/3 at any stage during her lifetime. Even after her demise her legal heirs manifestly confirmed the terms of agreement and their commitment to abide by it by furnishing affidavits Ex. PW 1/18 & Ex. PW 1/19. While she cannot claim to have become full owner of the property in question in February, 2002 on the property being reverted by the Income Tax Department she was a willing Vendee against payment of full consideration having been put in symbolic possession of the property in part performance of contract and was thus competent to assert herself and deal with tenants of the property and take other decisions in its respect. The issue is decided accordingly.
Suit no. 253 of 2005 Page no. 22 of 33 37. Issue No. 4: 37(a) Fact remains that the defendant has not formally attorned to the plaintiff.
No document has been proved on the record of this case showing that Mst. Khatoon Quamarain had conveyed the execution and import of agreement Ex.PW 1/3 to the defendant by way of letter/notice nor was it done by her legal heirs after her demise in 1996. On the other hand, letter Ex. DW 1/2 dated 20.05.2002 of Ms. Razia Grover is pressed into service by the defendant to contend that the daughter of original owner had disputed the proposed conveyance of property in question. The authenticity of the letter is in doubt as the letter purportedly received by the defendant by hand is not in consonance with the general conduct of its alleged author and her brother. The defendant claimed to have exchanged correspondence with Mrs. Razia Grover but none was filed to examine the authenticity of her signatures on the available copy of letter Ex. DW 1/2. The signatures even though look similar to one put by her on affidavit dated 29.05.2004 Ex. PW 1/18 yet do not match in material particulars.
37(b) It was held in J.C. Mehra Vs. Kusum Gupta, 2006 I RCR (Civil) 31 (Delhi) that where the property under sale through agreement was in occupation of tenant, it does not need tenant's consent to attornment before delivery of possession takes place. Once possession or right to recover rent has been handed over, it is sufficient delivery of possession. Delivery of possession does not have to be physical.
37(c) Further in Shiv Nath Vs. Mela Ram, 1969 RCR (Rent) 494 (SC) where
Suit no. 253 of 2005 Page no. 23 of 33
the purchaser of evacuee property in auction had filed a suit for ejectment against the tenant before obtaining sale certificate. The question whether auction purchaser of evacuee property can maintain a suit for ejectment before issue of sale certificate to him by the government was answered in affirmative.
37(d) Applying the ratio of above precedent, the plaintiff having paid the entire settled consideration of the property in question had the rights bestowed in her under agreement Ex. PW 1/3 operational. By virtue of acquiring substantial ownership in the property, she was entitled to be recognized as landlady by the defendant. The existence of relationship was there despite its manifest denial by the defendant throughout.
37(e) The contention of defendant that agreement Ex. PW 1/3 had terminated the moment plaintiff had accepted the refund of Rs. 10,00,000/ advanced to the original owner is absurd. It is not the case even of defendant that the plaintiff had demanded the refund of amount advanced to Mst. Khatoon Quamarain. Since the appropriate authority under Income Tax had paid the total consideration to the original owner, she had been advised to refund the advance taken from the plaintiff. The plaintiff had involuntarily received that amount and had challenged the order of Appropriate Authority in the Hon'ble High Court. PW 1 claimed that plaintiff had moved an application for depositing the advance amount of Rs. 10,00,000/ in the Hon'ble High Court but it was not accepted. Although he had offered to produce the copy of application and court proceedings in this behalf but were not called on behalf of the defendant nor have otherwise been filed. Nevertheless the fact that she had not given up the matter to rest and had rather vigorously pursued it in the Hon'ble High Suit no. 253 of 2005 Page no. 24 of 33 Court and the Hon'ble the Apex Court reflects that she intended to take the agreement Ex. PW 1/3 to its logical end.
37(f) It was the defendant, who was interested in continuing to deposit rent of the suit property in the name of Chief Commissioner, Income Tax even after March, 2002 apparently without resistance or insistence about their entitlement to receive it at the first place and had rather written a letter dated 02.04.2002 Ex. DW 1/1 to Deputy Commissioner (Income Tax) to insist that they continue to receive rent from him despite being specifically informed that they are going to deliver the possession of the property to 'transferee' i.e. the plaintiff. Instead of seeing the writing on wall, he had moved an application in the Hon'ble High Court seeking direction to deposit the rent. Vide Order Ex. DW 1/3, he was directed to deposit the outstanding rent in the said court itself. The defendant thereafter sent the rent in the name of original owner and on finding that she has passed away, started sending rent to her legal heirs by unilaterally splitting it equally in their names despite the fact that only the plaintiff was proclaiming herself to be the owner of suit property right from 2002 without any objection from legal heirs of Mst. Khatoon Quamarain. He even feigned ignorance about the legal heirs of original owner not encashing any of his rental instruments. It is therefore clear that having stepped into the shoes of Mst. Quamarain the plaintiff had become the landlady of suit premises wherein defendant was a tenant. The therefore is decided in negative.
38. Issue No. 1 & 2: 38(a) There is no dispute that the rent of the suit premises was Rs. 3,000/ per month when agreement Ex. PW 1/3 was executed. The plaintiff on becoming entitled Suit no. 253 of 2005 Page no. 25 of 33 to assert herself as beneficial owner/landlady of the property with effect from 28.02.2002 had issued notice dated 24.04.2002 Ex. PW 1/8 to the defendant calling upon him to attorn to her and also expressed her wish to enhance the rate of rent of the suit premises by 10% as provided under Section 6A & 8 of The Delhi Rent Control Act so as to make it Rs. 3,300/ per month with effect from 01.06.2002. The reply dated 11.07.2002, Ex. PW 1/9 of the defendant refuting all claims of plaintiff is redundant as the entitlement of plaintiff to enhance the rent was not disputed by projecting that it had already been so enhanced within three years preceding 01.06.2002 or otherwise. The enhancement in rent as statutorily provided is unilateral act of the landlord and did not require the consent or concurrence of the tenant. The rent of the suit premises therefore stood enhanced to Rs. 3,300/ per month with effect from 01.06.2002. Similarly, by virtue of legal notice dated 28.04.2005 Ex. PW 1/13, the rent of the suit property stood enhanced to Rs. 3,630/ per month with effect from 01.06.2005. Reply dated 14.06.2005 Ex.PW 1/14 thereto is superfluous for the identical reasons.
38(b) On the rate of the rent of the suit property crossing the benchmark of Rs. 3,500/ per month, the protection/eclipse of Delhi Rent Control Act got removed. The plaintiff who had filed Eviction Petition No. 23/03 under Section 14(1)(a) of Delhi Rent Control Act against the defendant on 17.03.2003 on noncompliance of legal notice Ex. PW 1/8 by him. It was withdrawn by her on 23.12.2006 during pendency of this suit. The contention that the defendant continued to enjoy the protection of Delhi Rent Control Act, in view of the above reasons, is untenable. The issue no. 1 thus is decided in negative while issue no. 2 is decided in affirmative.
Suit no. 253 of 2005 Page no. 26 of 33 39. Issue No. 3:
Although the tenancy of suit premises of the defendant was generally terminated by the plaintiff in all the notices issued to him yet legal notice dated 16.08.2005 Ex. PW 1/15 was specifically issued for terminating his tenancy and notifying that he will be liable to pay use and occupation charges of the suit premises at the rate of Rs. 75,000/ per month with effect from 01.10.2005. The defendant had sent its reply dated 26.09.2005, Ex. PW 1/16 denying her entitlement to deal with him. In view of the entitlement of plaintiff to deal with the tenant of suit premises and her having become its landlady by stepping into the shoes of Mst. Khatoon Quamarain, the choice to terminate the tenancy of defendant cannot be faulted. Her act of seeking eviction of the defendant by approaching the Rent Controller and now by way of present suit also reflects her unstinting endeavour. The proposition settled in Nopany Investments (P) Ltd. Vs Santokh Singh HUF, 146 (2008) DLT 217 (SC) and Shri Radhakrishan Temple Trust Maithan, Agra Vs Hindco Rotatron Pvt. Ltd. 187 (2012) DLT 548 interalia that filing of ejectment proceedings is in itself notice to quit on the tenant is relevant in the context. The issue therefore decided in affirmative.
40. Issue No. 7: In view of the plaintiff having established herself to be the owner/landlady of the suit premises of which rent is more than Rs. 3,500/ per month since the date of filing of the suit and the tenancy of defendant has been validly terminated, she is entitled to decree of possession thereof against the defendant. The issue is decided in affirmative.
Suit no. 253 of 2005 Page no. 27 of 33 41. Issue no. 8:
Mst. Khatoon Quamarain or her legal heirs did not claim rent of the suit premises from the defendant after December 1993. They remained so much committed to the terms of agreement dated 01.07.1993 that the rent subsequently remitted by the defendant unilaterally at his own convenience with motive to ward off the plaintiff, to Sh. Arif Quamarain and Ms Razia Grover through demand drafts in their names were not realized. The instruments rather were handed over by them to the plaintiff that she claims to have filed in eviction case. It is admitted that the Income Tax authorities did not accept rent from defendant after February, 2002. The defendant could have demanded the refund of rent for the month of March 2002 remitted to them as reflected in his letter dated 02.04.2002, Ex DW1/1. The plaintiff thus is entitled to realize rent @ Rs. 3,000/ per month with effect from 01.03.2002 to 31.05.2002; @ Rs. 3,300/ per month with effect from 01.06.2002 to 31.05.2005 and @ Rs. 3,630/ per month with effect from 01.06.2005 to 30.09.2005. Since the rent at directed rates was deposited by defendant under Section 15 (1) of The Delhi Rent Control Act and also pursuant to direction of the Hon'ble High Court of Delhi part of which plaintiff claims to have withdrawn, I do not find her entitled to claim interest on the same. The amount deposited by the defendant and withdrawn by the plaintiff shall be adjusted in her above defined entitlement. The entitlement of plaintiff for mesne profits is being considered in the next issue. Issue is decided accordingly.
42. Issue No. 9: 42(a) The parties have not examined any technical person dealing in properties Suit no. 253 of 2005 Page no. 28 of 33 and/or letting them out on the issue. The plaintiff however has deposed about the letting value of suit property at Rs. 75,000/ per month at the time of termination of tenancy of the defendant and that it is at higher pedestal now. He has not been cross examined in this behalf. PW 6 had brought copies of lease agreement and hire agreement of 01.08.2004 pertaining to property no. G10, Maharani Bagh, New Delhi situated very near to the property in question but could not legally prove either of them. Nevertheless, he stated that the suit property has better construction than house no. G10, Maharani Bagh and as per its location the rate of rent should be Rs. 4,00,000/ per month. The defendant on the other hand discounted the rental value projected by the plaintiff by pointing out various qualitative deficiencies in the suit premises to contend that the defects cumulatively have been causing inconvenience and hardship to him due to continuous deterioration of the property. He had however never brought any of these deficiencies to the notice of Mst. Khatoon Quamarain, her legal heirs, the Appropriate Authority of Income Tax or even to the plaintiff in his reply Ex. PW 1/16. The stance thus has been adopted by him by way of an afterthought.
42(b) It has been held in 'M.R. Sahni Vs. Doris Randhawa, AIR 2008 Delhi 110' that steep increase in rentals in Delhi is a matter of fact of which a judicial notice can be taken by the court. The similar sentiments were expressed in Vinod Khanna Vs. Bakshi Sachdev, AIR 1996 Delhi 32. In G M Enterprises Ltd. Vs Shyam Ahuja Ltd. 2000 RLR 278 it was held that plaintiff becomes entitled to mesne profits after the service of notice terminating the tenancy at the rate claimed in it. If it was not acceptable to the defendant, he should have chosen to vacate. When the court finds the rate claimed is approximate to market rent, it can grant decree at Suit no. 253 of 2005 Page no. 29 of 33 that rate. Reference to the detailed judgment in Skyland International Pvt. Ltd. Vs Kavita P Lalwani, 191 (2012) DLT 594 is necessary in this behalf. 42(c) Further it was held in Atma Ram Properties (P) Ltd. Vs. Fedral Motors (P) Ltd., 2005 (1) SCC 705 with reference to Section 111 of The Transfer of Property Act that after termination of tenancy the right of tenant to continue in possession of the premises comes to an end and for any period thereafter for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which landlord would have let out the premises on being vacated by him. Reference to the ratio in 'Sadhu Ram Vs. Parminder Singh, 2008 (8)SCC 132' may also be utilized in the context.
42(d) So far the interest on the entitlement for mesne profits is concerned, reference to Sri Ramnik Vallabhdas Madhwani Vs. Taraben Pravinlal Madhwani, AIR 2004 SC 1084 may be made where it was held that interest on mesne profits has to be calculated on yearly basis. As mesne profits are earned year to year from the first year itself. Further the rate of interest cannot be more than the claim. 42 (e) It cannot be denied that the suit property is situated in one of the elite and posh locality of Delhi mustering very huge market value as compared to the prevalent circle rates. The suit property has covered area of about 3000 sq.fit built over a plot of 800 sq. yards with lawns, passages and other amenities. Had the defendant been really facing hardship and inconvenience in its usage, he should have get rid of it much earlier. The suit premises comprising three bed rooms, large drawing room, garage, servant quarter etc had stagnantly fetched rent of Rs.3000/ Suit no. 253 of 2005 Page no. 30 of 33 per month to the landlord right from 1979 when Indian Express had taken it for the defendant, who became independent tenant in 1985. The rentals all over Delhi have gone manifold in the meanwhile. Legitimately the rental of suit premises in the last quarter of 2005 must not have gone below Rs. 20,000/ per month. Logically the rate of mesne profits during pendency of the suit did not remain static. With ever increasing trend and taking cue from the judgment in Gian Chand Gupta it is taken to have risen to Rs. 24,000/ with effect from 01.01.2009 and further to Rs. 30,000/ per month with effect from 01.01.2013. The defendant having deprived plaintiff of so much return of her property is liable to compensate her by way of paying interest. It is demanded @ 24% per annum by the plaintiff but that is on higher side. The grant of interest @12% per annum on yearly basis from the month following the accrual of mesne profits till payment appears to be equitable and expedient. The issue is decided accordingly.
43. Issue No. 10: In order to preserve the suit property, save it from being wasted and to ensure that the aged plaintiff in her late 80s is not denied the fruits of her labour in this suit, it is deemed just to grant the claimed equitable relief to her which by no stretch of interpretation will prejudice the defendant. Issue thus is decided in affirmative.
44. Issue No. 11: 44(a) The corollary of above discussion is that decree of possession of suit premises i.e. ground floor of House No. G4, Maharani Bagh, New Delhi together Suit no. 253 of 2005 Page no. 31 of 33 with front lawns, West side open space, one garage on the SouthEast side, one servant quarter on top of the garage, one servant's toilet near the side garage and common use of the toilet on top of the garage as morefully shown engrossed in yellow colour in site plan Ex. PW1/D1 is hereby passed in favour of the plaintiff and against the defendant.
44(b) The plaintiff is further held entitled to recover the arrears of rent @ Rs. 3,000/ per month with effect from 01.03.2002 to 31.05.2002; @ Rs. 3,300/ per month with effect from 01.06.2002 to 31.05.2005 and @ Rs. 3,630/ per month with effect from 01.06.2005 to 30.09.2005 from the defendant. 44(c) Decree of mesne profits/damages for use and occupation of the suit premises @ Rs. 20,000/ with effect from 01.10.2005 till 31.12.2008, @ Rs. 24,000/ per month with effect from 01.01.2009 till 31.12.2012 and @ Rs. 30,000/ per month with effect from 01.01.2013 till actual delivery of vacant and peaceful physical possession of the suit premises with interest @ 12% per annum on yearly basis from the month following the accrual of mesne profits till payment is also passed in favour of the plaintiff and against the defendant. 44(d) The defendant is hereby restrained from parting with possession of whole or a portion of the suit premises to any person other than the plaintiff. 44(e) The amounts lying deposited by the defendant in court proceedings shall be forthwith withdrawn by the plaintiff by applying for the same. Such amounts and Suit no. 253 of 2005 Page no. 32 of 33 the amount already received/withdrawn by her shall be adjusted against the above accruals. The plaintiff shall also be entitled to costs of the suit. 44(f) Decreesheet be accordingly prepared. The decree in respect of mesne profits/damages however shall be executable only on the plaintiff making up deficiency in court fee.
File be consigned to Record Room.
Announced in the open court
on 18th November, 2013 (Sunil K. Aggarwal)
Addl. District Judge (Central)10
Delhi
Suit no. 253 of 2005 Page no. 33 of 33