Delhi District Court
Sh. Ashok Kundu vs Sh. G.K. Malhotra on 4 December, 2007
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IN THE COURT OF SHRI NEERAJ KUMAR GUPTA
ADDL.DISTRICT JUDGE;DELHI
Suit No.53/06
Sh. Ashok Kundu
S/o Sh. H.S.Kundu
R/o 197, Pocket-24,
Sector-24,
Rohini,
Delhi. .....Plaintiff
Versus
Sh. G.K. Malhotra
S/o Sh. Jessa Ram Malhotra
R/o 138, Pocket-7
Sector-2
Rohini,
Delhi ......Defendant
Date of Institution - 03.06.2006
Date on which order reserved - 12.11.2007
Date on which order announced 04.12.2007
J u d g m e n t:
The present suit has been filed by the plaintiff against
the defendant Shri G.K.Malhotra for recovery of possession of
LIG flat bearing No.138, on second floor, pocket 7, Sector-2,
Rohini, Delhi and for damages at the rate of Rsw.7000/- per
month.
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2. The case of the plaintiff is that during the month of
May/June, the defendant approached the plaintiff through a
common friend namely Shri Sri Krishan Dahiya and requested
for accommodation as marriage of defendant's son was to take
place in July,2003 and on humanitarian ground the plaintiff
allowed the defendant to occupy the suit premises without
payment of any charges for a period of 2-3 months to meet the
urgent requirement of the defendant. At the time the
defendant undertook and promised to vacate the premises
after solemnization of marriage of his son and in any case
before Diwali festival of the year 2003. However, in
October/November,2003 the defendant represented to the
plaintiff that his daughter in law has developed complications
during pregnancy and sought time to vacate the premises and
the plaintiff acceded to such request of the defendant but it
was agreed that the defendant will pay a sum of Rs.7000/- per
month as license fee for use and occupation of the said
premises.
3. It is also the case of the plaintiff that defendant did not
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pay the amount nor vacated the suit premises and the plaintiff
sent a notice dated 2.7.2004 terminating the license of the
defendant and asking him to vacate the premises forth with
but the defendant did not vacate the same inspite of the receipt
of the notice and rather filed a false and frivolous suit for
permanent injunction on flimsy grounds based on sham and
fabricated documents to harass the plaintiff and usurp the suit
property which suit was disposed off on 27.1.2006 by Shri
Vinay Singhal, Civil Judge, Tis Hazari, Delhi directing the
defendant to take recourse through due process of law.
4. It is also the case of the plaintiff that he again sent a
legal notice dated 20.2.2006 requiring the defendant to vacate
the suit premises and to pay damages/mesne profits at the
rate of Rs.7000/- per month for unauthorized use and
occupation of the suit premises but the defendant willfully
refused to accept the legal notice and did not vacate the
premises.
5. It is also the case of the plaintiff that after termination of
the license of the defendant, with effect from July 2004 the
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defendant became unauthorized occupant with regard to the
suit property and is liable to vacate the premises and is also
liable to pay damages at the rate of Rs.7000/- per month, till
the vacant possession is handed over. The damages claimed
from July,2004 to May,2006 as the suit was filed on 3.6.2006.
6. The defendant in his written statement has taken the
objection that the plaintiff has no locus standi to file the
present suit as he is not the owner of the suit property and the
plaintiff has not approached the court with clean hands and
has suppressed material facts. Objection is also taken that the
suit property is not valued properly as the value of the property
is more than Rs. 20,00,000/-and the valuation of
Rs.6,00,000/- put by the plaintiff is incorrect. However, no
evidence has been led by the defendant in this respect
7. Defendant has taken the plea that he was inducted as a
tenant in May,2002 through Hisar property dealer, pocket VII,
Rohini, Delhi and even the terms and conditions of the rent
agreement were finalized in a meeting at the office of the
property dealer, where the plaintiff told the defendant that the
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suit property belongs to Smt. Shanti Devi wife of Tek Ram and
plaintiff is relative of Smt. Shanti Devi and in that capacity he
is entitled to collect the rent and to negotiate with the
defendant as Smt. Shanti Devi could not come personally.
8. It is also the case set up by the defendant that the rent
agreement was prepared by the plaintiff and after taking
signature of Smt. Shanti Devi, he furnished the rent agreement
to the defendant and the defendant paid a security sum of
Rs.5,000/- to the plaintiff which was received by him and rent
of Rs.2700/- per month which was prevelant market rent for
the suit property which varies from Rs.2,500 to Rs.3,000/-. It is
also the case of the defendant that the photo copy of the rent
agreement was given to the defendant and the original was
retained by the plaintiff. Objection has also been taken that
since the defendant is a tenant and the rent is less than
Rs.3500/- the plaintiff can take recourse only under the Delhi
Rent Control Act and said proceedings can only be initiated by
Smt. Shanti Devi who is the actual landlady. It is also the case
of the defendant that the documents filed by the plaintiff in
support of ownership are fabricated documents and such
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documents were not filed when the defendant filed the suit for
injunction against the plaintiff and has even not claimed the
ownership right in the said suit.
9. It is also stated that in the suit filed by the plaintiff
against the defendant for permanent injunction defendant also
preferred a counter claim which was dismissed by the Court of
Shri Vinay Singhal, Civil Judge, Delhi. In parawise reply also
the defendant took the plea that the plaintiff is not the owner
and the documents filed by him are fabricated and rather it is
Smt. Shanti Devi who is the owner of the property as per the
photo copy of the rent agreement supplied to the defendant
and that the plaintiff is collecting rent from the defendant on
behalf of Smt. Shanti Devi. It is denied that the defendant had
approached the plaintiff through a common friend Shri Sri
Krishan Dahiya requesting for accommodation for the
marriage of his son or that he was allowed to stay in the
premises for 2-3 months on humanitarian ground and the fact
is that the defendant do not even know Shri Sri Krishan Dahiya
and rather in the month of May,2002 the defendant was in
search of accommodation and he took the premises on rent
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through Hisar poperty dealer and even the rent agreement was
executed between defendant and Smt. Shanti Devi and that the
plaintiff had represented that he is special attorney of Smt.
Shanti Devi.
10. It is also the case of the defendant that as per the photo
copy of the agreement dated 23.5.2002 in terms of clause 5
thereof 10% rent was to be increased after eleven months and
that the defendant has been paying rent to the plaintiff which
he is collecting on behalf of Smt. Shanti Devi. He has denied
any promise having been extended by him. Defendant has also
denied receipt of the notices as alleged by the plaintiff or that
he is liable to hand over the vacant possession of the premises.
11. It is also stated that the plaintiff in the suit filed by the
defendant had made a statement that he will not dispossess
the defendant without due process of law and the same
statement has been given by the plaintiff and the matter was
orally compromised between the parties which will mean that
all the rent till that date duly paid to the plaintiff by the
defendant and the suit was dismissed as satisfied by the Court
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of Shri Vinay Singhal, Civil Judge, Delhi.
12. On the pleadings of the parties my predecessor had
framed the following issues on 31.10.2006:
1.Whether the defendant is a licensee or a tenant in respect of the suit premises in his possession?
2. If issue No.1 is decided in favour of the plaintiff, whether the plaintiff has cancelled the license of the defendant, if so its effect?
3. Whether the plaintiff is entitled to recover the possession of the suit property from the defendant?
4. Whether the plaintiff is entitled o recover the damages from the defendant as claimed?
5. Relief.
13. I have heard the learned counsel for parties and have perused the record. On perusal of record, it reveals that none appeared on behalf of the defendant for arguing the matter on two dates after counsel for defendant on 24.8.2007 made statement regarding closing the evidence of the defendant.
14. Plaintiff in support of his case has examined three 9 witnesses and has examined himself as PW-1. PW-2 is Sh. Darshan Singh, UDC from DDA Vikas Sadan. He has brought the original file pertaining to flat No.138 Pocket-7, Sector 2, Type C, Rohini, Delhi which was allotted to Shri Inderpal Singh and he has proved the allotment letter as Ex.PW1/2 and the possession letter as Ex.PW1/3 in favour of Shri Inderpal Singh. The witness was cross examined on behalf of defendant and the cross examination was on the line that the property is not in the name of Ashok Kumar. The fact remains that no suggestion was given that this property stands transferred or was owned by Smt. Shanti Devi. The fact also remains that no notice under Order 12 Rule 8 CPC has been given by the defendant to the plaintiff to produce the original of alleged rent agreement of May,2002 nor the defendant has examined the property dealer through whom he has alleged to have taken the premises on rent in support of his contention that the rent agreement was duly executed and photo copy of the same was handed over by the plaintiff to the defendant. As such the defendant has failed to prove on record that Smt. Shanti Devi is the owner of the premises or is the landlady. 10
15. The plaintiff in his affidavit filed way of evidence has deposed in terms of the averments made in the plaint and has proved the site plan Ex.PW1/1, allotment letter in favour of Shri Inderpal Singh which he received from him when he has purchased the property,as Ex.PW1/2 possession letter as Ex.PW1/3. He has also placed on record the original challans Ex.PW1/4 to Ex.PW1/13 reflecting that for the purchase a n agreement to sell was entered into between him and Shri Inderpal Singh,it is he has been depositing the amount due to the DDA from Shri Inderpal Singh for and on behalf of Shri Inderpal Singh. The original of the said documents have been produced by the plaintiff.
16. The plaintiff had also proved on record original general power of attorney , agreement to sell, Will and receipt dated 19.2.1991 executed by Shri Inderpal Singh in favour of the plaintiff as Ex.PW1/14 to Ex.PW1/17 and has stated that the documents were signed by Shri Inderpal Singh in his presence and identified the signature of Shri Inderpal Singh at point A and that of Shri Sri Krishan Dahiya, a witness at point C and his own signature at point B and has stated that on the basis of 11 the said documents he became the owner of the said flat.
17. He has proved the letter dated 2.7.2004 terminating the license of the defendant as Ex.PW1/18 and the original courier receipt as Ex.PW1/19 and the UPC receipt as Ex.PW1/20. He has proved the copy of legal notice dated 20.2.2006 as Ex.PW1/21, its postal receipts Ex.PW1/21 & Ex.PW1/22 , UPC receipt Ex.PW1/23 and the returned envelope as Ex.PW1/24, where there is a remark of refusal by the postal authorities.
18. PW-3 Shri Srikrishan Dahiya who had also stated in his affidavit filed by way of evidence regarding execution of documents Ex.PW1/14 and Ex.PW1/15 in his presence and has identified his signature and the signature of Shri Inderpal Singh and that of the plaintiff on the same. He has also deposed that in May/June,2003 the defendant approached him and requested for accommodation and that it is he who introduced the defendant to the plaintiff for the accommodation and that initially on humanitarian ground premises were given along with fittings and fixtures for a period of 2-3 months.
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19. The defendant has produced himself as the only witness and has stated that he inducted as a tenant in the premises in May,2002 by Hissar Property dealer and not through Shri Sri Krishan Dahiya and the terms of tenant was settled in the office of said property dealer when he was told by the plaintiff that the premises is owned by Smt. Shanti Devi and the plaintiff is relative of Smt. Shanti Devi and plaintiff is authorized to negotiate the agreement on behalf of Smt. Shanti Devi and the agreement was taken away by the plainiff for signature of Smt. Shanti Devi and plaintiff also received a sum of Rs.5,000/- and the rent agreed was Rs.2700/- per month and that the rent prevalent in the market on those days was Rs.2500/- to 3,000/-.
20. He has also denied that plaintiff is the owner of the property and that he has also filed a suit for permanent injunction and the documents filed by the plaintiff are fabricated and in any case do not confirm the title of the plaintiff. He has also stated that rent stands duly paid to the plaintiff on behalf of Smt. Shanti Devi up to January,2006 13 when the civil suit was filed by him and was compromised on 27.1.2006. He has denied the receipt of notice dated 2.7.2006 and has stated that he is not an unauthorized occupant but is a tenant.
Issue No.1: Whether the defendant is a licensee or a tenant in respect of the suit premises in his possession?
21. The case of the plaintiff is that the defendant was inducted as a licensee in the suit premises at the asking of Shri Sri Krishan Dahiya in the month of May/JUne2003 and on the request of the defendant, that he requires the premises for 2- 3 months but thereafter on the request of the defendant further stay in the suit premises the license fee of Rs.7000/- was fixed . On the other hand the case of the defendant is that he was a tenant in the premises since May,2002 and was inducted through Hisar property dealer and has relied upon the rent deed mark A.
22. So far as the defendant is concerned, he has filed to prove on record any document to show that he was in possession of the premises since May,2002. IN case he had 14 proved the same, the very version of the plaintiff that the defendant was inducted as a licensee in May/June,2003 could not have survived . As already observed, the defendant has also failed to produce any person from Hisar property dealer as a witness suggesting that the tenancy commenced in May, 2002.
23. The version with regard to Smt. Shanti Devi, owner had already been discussed above and defendant has failed to show that Smt. Shanti Devi is the owner of the property. Even in his cross examination the defendant came up with the version that Smt. Shanti Devi may be the wife of the plaintiff but when confronted that there is no lady by the name of Smt. Shanti Devi, he stated that he was inducted by the plaintiff in the premises.
24. The only question which left is whether the defendant was inducted as a licensee or as a tenant. On behalf of the plaintiff PW-3 Shri Sri Krishan Dahiya had been examined who had stated that the document executed by Shri Inderpal Singh infavour of the plaintiff w ere so executed in his presence and he is a witness to the same. The document includes General 15 Power of Attorney, which has been proved by the plaintiff as Ex.PW1/14. Since the plaintiff is a general power of attorney of Shri Inderpal Singh, argument that the plaintiff is not the owner and cannot file a suit for possession is liable to be rejected as in the capacity of general power of attorney he could have inducted the defendant in the premises and the concept of ownership becomes insignificant . In any case, it is the own case of the defendant that he was inducted by the plaintiff as a tenant and by virtue of section 114 of the Evidence Act, no tenant can dispute the title of the landlord.
25. PW-3 had further stated that during the month of May/June,2003 the defendant approached him and requested for accommodation as marriage of defendant's son was to take place in July,2003 and that he introduced the defendant to the plaintiff for the accommodation and made request to the plaintiff on humanitarian ground and the plaintiff allowed the defendant to occupy the suit premises bearing No.138 pocket, 7, sector-2 Rohini, Delhi for the aforesaid purpose with fitting and fixtures without any charges for a period of 2-3 months to meet the urgent requirement. So this witness has deposed with 16 regard to the induction as a licensee without fees but later on this witness has stated that the defendant is an unauthorized occupant. Though he has not at all stated about the creation of license or termination of license. Same is very surprising as it is the own case of the plaintiff that he was the person through whom the premises was given on license to the defendant. Otherwise the plaintiff was not knowing the defendant at all. It is difficult to digest if such a person through whom a person was inducted as licensee on humanitarian ground will not keep track of the things and assure that the person got inducted through him had vacated the premises or not or whether any new arrangement had been made or not.
26. Not only the testimony of PW-3 is in consistence but even in his cross examination he has been unable to answer the relevant question though it is his own version is that defendant was known to him. He has stated that he do not know where the defendant was residing before he came into occupation of the suit premises. He has stated that he do not recollect the date on which he arranged the suit premises for the defendant from the plaintiff. He has further stated that at 17 the time he was posted at Sonepat and at that time he used to reside at Rohini and he met the defendant at Rohini but he has not taken any leave for the purpose of arranging the house to the defendant. He has further stated that he was knowing the defendant only 5-6 months prior to arrangement of the house for the defendant.
27. So not only PW-3 had been unable to show the relationship with the defendant so as to convince the plaintiff that on his behalf and on humanitarian ground the premises be given on license basis to the defendant but he has failed to show that in fact he was present at the time of creation of license as he do not remember the date nor he had taken any leave from his department and he otherwise was not knowing the address of the defendant.
28. Even the case of the plaintiff , as set up in the plaint and deposed by PWs 1 & 3 are vague in nature. They have not given the date of license or even the month of creation of license and it is generally stated that the license was created either in May/June,2003. Similarly the date of automatic 18 termination of licence is also vague as it is stated that the defendant was to vacate the premises within 2-3 months before Diwali. No document has been shown or proved on record that the marriage of the defendant's son was fixed during this period and the fact remains that the defendant has denied that his son was married during this period. So the attendant circumstances regarding creation of licencse as alleged by the plaintiff do not inspire any confidence and do not support the plea of induction of defendant in the premises as tenant.
29. The most important consideration though , may not be sole consideration to arrive at whether a person is a licensee or a tenant is the text of exclusive possession. Undoubtedly, the plaintiff was residing far away from the suit property and he has not at all stated that he had any control over the suit property during the period of continuance of alleged license. As such it also stands proved on record that it was the defendant who was in exclusive possession of the suit premises. Since the exclusive possession was with the defendant and the attendant circumstances regarding use of license are not proved, it cannot be said that the defendant was 19 a licensee. Rather since the exclusive possession was with the defendant, the defendant has been able to prove that he was a tenant in the premises. The issue NO.1 is decided against the plaintiff and in favour of the defendant.
Issue No.2 If issue No.1 is decided in favour of the plaintiff, whether the plaintiff has cancelled the license of the defendant, if so its effect?
30. Since issue NO.1 has been decided against the plaintiff, the question of termination of license donot arise. The issue is decided accordingly.
Issue No.4 Whether the plaintiff is entitled o recover the damages from the defendant as claimed?
31. The case of the plaintiff is that license was created at the rate of Rs.7000/- per month and the same was the prevalent market rent, the premises could have fetched during that period. So it is the own case of the plaintiff that the fixation of Rs.7000/- was on the basis of the rent prevalent in the area. However, no evidence has been led by the plaintiff in support of his plea that during those days the rent prevalent was Rs.7000/- per month. On the other hand the case set up by the 20 defendant is that the rent was Rs.2700/- per month and the same was the prevalent market rent at that time. Since it was for the plaintiff to prove regarding the prevalent rent and he has not led any evidence in this regard and the version of the defendant is that prevalent market rate is Rs.2700/- the same brushed aside and as I have already held that the defendant is a tenant in the premises, it is now held that the rate of rent was Rs.2700/- per month.
32. The case of the defendant is that he has paid rent but the plaintiff has not issued any rent receipt . Payment was to be proved by the defendant and he has not produced any witness to show that rent was paid as the defendant has failed to show that he has paid the rent. It is the own case of the defendant that the suit of the defendant was dismissed as satisfied. The only understanding given by the plaintiff was that he will not dispossess the defendant otherwise, than in due course of law. On such undertaking the suit was got dismissed without any further adjudication. As such the argument that rent stood paid upto the date of filing of suit for permanent injunction by the defendant , is liable to be 21 rejected. Defendant had placed on record a copy of the written statement filed by the present plaintiff in that suit, which shows that the stand of plaintiff taken in this case is different to the stand taken in the said suit, but since, the plaintiff has not been confronted from the argument and certified copies have not been placed on record, defendant can not derive any benefit from the same, the plaintiff is not entitled to recover damages but is entitled to recover the rent from June, 2003 till the date of filing of the suit ie 315.2006 for three years.
33. It is the own case of the defendant that the rent of Rs.2700/- was to be increased by 10% after every eleven months. As such the defendant is liable to pay to the plaintiff a sum of Rs.29,700/- being the rent upto 30.4.2004 and Rs.32,770/- till 31.5.2005 and Rs.35,640/- till 28..2006 and Rs.9,630/- till 31.5.2006 ie the date of filing of the suit. The defendant is liable to pay to the plaintiff a sum of Rs.1,07,740/- as rent. Issue No.4 is decided accordingly. Issue NO.3 Whether the plaintiff is entitled to recover the possession of the suit property from the defendant? 22
34. Since the rate of rent is Rs.2700/- per month, the premises will be covered under the Delhi Rent Control Act and defendant being a tenant suit for possession is bound to fail. Issue NO.3 is decided in favour of the defendant and against the plaintiff.
Relief
35. In view of the above discussion, the suit of the plaintiff is decreed for a sum of Rs.1,07,740/- being rent is passed in favour of the plaintiff and against the defendant with costs and pendentelite and future interest at the rate of 9% per annum till realization. Decree sheet be prepared and the file be consigned to record room.
Announced in open court. ( Neeraj Kumar Gupta) 4th December,2007 Addl. District Judge, Delhi.