Delhi District Court
Sh. Naresh Kumar Aggarwal vs Smt. Asha Rani W/O Late Sh. V.M. Bhandari on 19 May, 2014
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE 05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No. 958/10
Unique ID No.
1. Sh. Naresh Kumar Aggarwal,
2. Sh. Ajay Aggarwal,
Both sons of Sh. Deen Dayal Aggarwal,
R/o C90, Antariksh Tower, Rohini,
Delhi.
.............Plaintiff s
Versus
Smt. Asha Rani W/o Late Sh. V.M. Bhandari,
R/o 3000/2 Chuna Mandi,
Gali No. 2, Pahar Ganj,
New Delhi.
.............Defendant
Date of filing : 08.01.2003
Date on which order has been reserved : 13.05.2014
Date of pronouncement of judgment : 19.05.2014
JUDGMENT
1. Plaintiff has filed the present suit for the following reliefs:
(i) A pass a decree for ejectment in respect of 3rd and 4th floor of Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.1/25 the property bearing No. XIV/2999 and 3000 (old no.XIV/3935A) situated in Gali No.2 Bhagat Singh Street, Sangtarashan, Pahar Ganj, New Delhi (hereinafter referred the suit property) in favour of the plaintiffs and against the defendant.
(ii) To pass a decree of Rs.1,44,000/ in favour of the plaintiffs and against the defendant towards the arrears of rent.
(iii) To pass a decree of Rs.1200/ in favour of the plainitff and against the defendant towards the damages and mense profits @ Rs.1200/ per day from 01.01.2003 till the date of filing of the suit and further decree at the said rate or at such rate on which this Hon'ble Court may arrive at after holding enquiry under Order 20 Rule 12 CPC pendente lite and future till the Defendant vacates and hand over the physical vacant possession of the property.
2. Plaintiffs Version: In the present suit, plaintiff stated that the plaintiffs are the owners of the property bearing No.XIV/2999 and 3000 (old no. XIV/3935A) situated in Gali No.2 Bhagat Singh Street, Sangtarashan, Pahar Ganj, New Delhi built on plot of land of 100 sq. yards which they bought as a built up property vide two separate sale deeds dated 12.09.96 by virtue of which 50 sq. yards built up property wsa sold to the plaintiff no. 1 and 50 sq. yards to plaintiff No.2 and as such both of them are joint owners of the entire property. The Defendant husband Late V.M. Bhandari Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.2/25 was a tenant on the 3rd and 4th floor of the said property shown in red colour in the plan, at a monthly rent of Rs.4,000/ p.m. Which rent he did not pay to the plaintiff after the purchase of the property by them and Sh. Bhandari expired leaving behind the Defendant as his heir who is now in possession of the property in question. The tenancy was a monthly tenancy for which no agreement was executed and used to start on first day of each English Calendar month and ends on the last days of the same month. Through the rent has not been piad for last many years but the plaintiffs are claiming the rent for the past three years on account of law of limitation amounting to Rs.1,44,000/ which rent was demanded by them vide registered notice dated 23.11.2002 and was not paid despite receipt of the notice sent under Regd. AD cover and UPC. Since the Defendant was a widow of Late V.M. Bhandari, the entire estate of late V.M. Bhandari fell upon her in accordance with law and the plaintiffs terminated the tenancy vide notice dated 23.11.2002 with the end of 31.12.2002 on which date the tenancy of athe Defendant has come to an end by virtue of the said notice. The notice was duly received but was not replied or acknowledged.Since the Defendant is in wrongful use and occupation of the property after 31st December 2002, the Defendant is liable to pay damages and mesne profits at the market rate of rent. The plaintiff is claiming damages and mesne profits at the rate of Rs.200/ per day from 01.01.2003 till the date of filing of the suit which amount comes Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.3/25 to Rs.1200/ . The Plaintiffs are also entitled to further damanges and mesne profits at the said rate or at such rate or at such rate on which this Court may arrive at after holding enquiry under Order 20 Rule 12 CPC pendent lite and future till the Defendant vacates and hand over the physicla vacant possession of the suit property to the Plaintiffs and the Plaintiffs undertake to pay the deficient court fee at the time of passing of the decree.
3. Defendant's Version: In WS, defendant has denied all the claims of the plaintiffs on the following grounds:
(i) This Court has got no jurisdiction to try and entertain the present suit. The monthly rent of the property in question is Rs.500/ per month with respect to property situated at 3rd floor of the property in question.
(ii) The suit of the plaintiff is bad for nonjoinder of necessary parties besides the defendant, the deceased Sh. V.M. Bhandari has left, Smt. Sangeeta Jain, W/o Sh. Prakash Jain, Dalautganj Ujjain, Smt. Seema Mehta, W/o Sh. Dinesh Mehta, T.I.T. Road, Ratlam and Master Shashank Bhandari at the legal heirs. Thus the two daughters and one minor son are liable to be made party to the present proceedings as they have also inherited the tenancy rights.
(iii) It is well within the knowledge of the plaintiff that Smt. Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.4/25 Nirmala Rani by virtue of agreement dated 04.11.1991 has agreed to sell the roof of 3rd floor of the property in question for a sum of Rs.50,000/ for constructing the 4th floor on the said premises. The plaintiff also intimidated to kill and destroy the property in question during the life time of Sh. V.M. Bhandari. Sh. V.M. Bhandari also lodged a complaint with SHO, Paharganj on 22/11/1996. Thus the present suit for ejectment etc. visavis 4th floor is not maintainable and the same is liable to be rejected.
(iv) There exists no relationship of landlord and tenant between the parties.
(v) The husband of defendant was a tenant with respect to the 3rd floor of the property in question on a monthly rent of Rs.500/. The rent was being paid to Smt. Nirmala Rani, W/o Sh. Dharamveer. A petition for eviction of property situated at 3rd floor was filed by Smt. Nirmala Rani and the objections were filed by late Sh. V.M. Bhandari. The landlord/owner of the 3rd floor of property is Smt. Nirmala Rani to whom the rent was paid from time to time.
(vi) The rent of Rs.500/ per month was paid to Smt. Nirmala Rani and the same was paid till the year 1996. Thus the question of claiming of Rs.1,44,000/ as alleged or otherwise does not arise. The notice of demand 23/11/2002 was duly replied vide registered AD dated 11/01/2003. In the proceedings before the Rent Controller, Delhi between Sh. V.M. Bhandari and Smt. Nirmala Devi, the admitted rent was Rs.500/ Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.5/25 per month. It is totally false to allege that no reply to the notice dated 23/11/2002 was sent. A letter dated 11/01/2003 was sent. The said notice was not in accordance with law and the tenancy could not have been terminated as alleged in the said notice.The question of claiming any damages and/or mesne profits does not arise.
5. Replication: By way of replication, plaintiffs have denied all the claims of defendant stating that after the death of Late Sh. V.M. Bhandari, his wife, the defendant started dealing in the suit premises and and she only represented herself to be tenant. In these circumstances, there is no question of impleadment/making of party all the other heirs i.e. the daughters and one minor son of late Sh. V.M. Bhandari. The two daughters and one son are not liable to be made a party in the present suit as they have not inherited the tenancy rights. The plaintiffs are the owners/landlords of the property as they have purchased the suit premises consisting of ground floor, first floor, second, third and fourth floor vide two separate sale deeds dated 12.09.1996. After the sale of the property on 12.09.1996, Smt. Nirmala Rani had nothing to do with the property in question as the Plaintiffs become the joint owners/landlords of the suit property. The plaintiffs were/are entitled to receive the rent in respect of 3rd and 4th floor of the property from the husband of the Defendant and after his death from the Defendant.
Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.6/25
6. Issues: On the basis of pleadings and arguments of the parties, vide order dated 16.09.2004, the following issues have been framed: (I) Whether this court has no jurisdiction to try, entertain and decide the suit in view of bar of Section 50 of DRC Act? OPD. (II) Whether the suit is bad for nonjoinder of necessary parties? OPD.
(III) Whether there exists a relationship of landlord and tenanct between the plaintiffs and defendant? OPP.
(IV) Whether the tenancy of the Defendant had been validly terminated as per Sec. 106 of the Transfer of Property Act? OPP (V) Whether the plaintiff is entitled for the relief of ejectment/possession as prayed for? OPP (VI) Whether the plaintiff is entitled for the relief recovery of arrears of rent as prayed for? OPP (VII) Whether the plaitiff is entitled to any damages, if so, at what rate and for what period? OPP
7. Plaintiff's Evidence: To prove their case, plaintiffs have examined himself as PW1 and has relied upon the following documents:
(i) Sale deed dated 12.09.1996 is Ex. PW1/1.
Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.7/25
(ii) Another sale deed is Ex. PW1/2.
(iii) Mutation Letter dated 26.12.1996 is Ex. PW1/3.
(iv) No Dues Certificate dated 03.02.1999 is Ex. PW1/4.
(v) Site plan is Ex. PW1/5.
(vi) Notice dated 23.11.2002 is Ex. PW1/6.
(vii) Postal Registration Receipt is Ex. PW1/7.
(viii) Certificate of posting is Ex. PW1/8.
(ix) AD Card is Ex. PW1/9.
(x) Reply received from the defendant is Ex. PW1/10.
8. Defendant's Evidence:
On the other hand, in his defence, defendant has examined herself as DW1 and she has relied upon the following documents:
(i) Copy of rent receipts No. 24 and 27 are marked A & B.
(ii) Lease Agreement dated 04.11.1991 is Mark C.
9. The final arguments have been concluded from both the sides on 07.05.2014 and 08.05.2014.
10. My Issue Wise Findings: For the sake of convenience, the issue No. 5 to 7 are discussed Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.8/25 together: Issue No. 5: Whether the plaintiff is entitled for the relief of ejectment/possession as prayed for? OPP Issue No. 6: Whether the plaintiff is entitled for the relief recovery of arrears of rent as prayed for? OPP Issue No. 7: Whether the plaitiff is entitled to any damages, if so, at what rate and for what period? OPP
(i) The onus to prove these issue is upon the plaintiffs. To prove the same, plaintiffs have examined Sh. Naresh Kumar Aggarwal as PW1 (Plaintiff No. 1) and during examination in chief by way of affidavit, he has reasserted the facts mentioned in the plaint. He was duly cross examined and during cross examination, he has deposed that "............The reply to legal notice dated 23.11.2002 was received by my counsel. I do not know the exact date with regard to the receipt of the reply to the notice by my counsel...........The reply to the notice dated 23.11.2002 was received late according to my knowledge. I do not know the duration of the reply of notice was late for............I have gone through the entire plaint and it is correct that the facts stated in last sever lines of para No. 2 of my affidavit are not there in the plaint. Vol. It may be left by my counsel by mistake. I have purchased the property bearing No. 2999/3000/2, Chuma Mandir, Paharganj on 12.09.1996. The said property comprises of three and a half floors with terrace. There are three and a half floors in the building. There is no fourth floor. Again said, the fourth floor is partly built up.........I have purchased the entire building including the roof rights of the third floor. I am not aware whether late Sh. V.M. Bhandari, was survived by his wife and three children. I knew only Mr. Bhandari. Q. Do you have any receipt for rent amounting to Rs.4000/? A. The defendant did not make any payment. Vol. The rent was Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.9/25 fixed at Rs.4,000/ with late Mr. V.M. Bhandari.
This happened in the month of September 1996. The rent was fixed at Rs.2000/ per floor. I do not remember whether this fact has been incorporated in my legal notice or the plaint.........I have got no concern with the defendant as I rented the premises to late Mr. V.M. Bhandari and now after his death, they are the unauthorized occupants of the said premises. I have never accepted defendants as my tenants..........I do not know as to how many rooms exist on third and fourth floors and whatever has been mentioned in the site plan filed by me depicts the situation at the site. The site plan is as per the original situation but I do not know whether what changes were made by Sh. V.M. Bhandari..........."
(ii) On the other hand, defendant has examined herself as DW1 and during examination in chief, she has reasserted the facts mentioned in WS and she was duly cross examined and during cross examination, she has deposed that "...........I do not know whether my husband Late Sh. V.M. Bhandari was assessed to Income Tax or not or filing income tax return. I do not know whether Late Sh. V.M. Bhandari has ever replied for assessment of House Tax with regard to the suit property stating therein that he became the owner having purchased from the earlier owner namely Smt. Nirmala Rani. I do not know whether Mark C was ever sent by my Late husband Sh. V.M. Bhandari to any public/government authority. The property was taken on rent by my husband in the year 19801981. We do not have any old rent receipts prior to the rent receipts filed by me which is already Mark A and B. I do not know where Mark A, Mark B and Mark C are typed and on whose instructions they were got typed. I do not know whether our earlier land lady Sm.t Nirmala Rani was paying any house tax with regard to the suit property or not.............." Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.10/25
(iii) Further, defendant has examined Sh. Prakash Chand Jain as DW2 and he has stated that the rate of rent is Rs. 500/ per month.
(iv) In the present suit as per plaintiffs, plaintiff have purchased the property bearing No. No.XIV/2999 and 3000 (old no. XIV/3935A) situated in Gali No.2 Bhagat Singh Street, Sangtarashan, Pahar Ganj, New Delhi built on plot of land of 100 sq. Yards vide two sale deeds on 12.09.1996 from one Smt. Nirmal Rani. The husband of defendant Sh. V.M. Bhandari was tenant over the 3rd and 4th floors of the suit property at the rate of Rs. 4,000/ per month but he has never paid rent to the plaintiffs and died leaving behind defendant as his heir who is in possession of the property. Defendant has not paid rent sinc last many years, plaintiffs are claiming rent for the last 3 years just before the legal notice dated 23.11.2009. As per plaintiffs, the tenancy was terminated vide notice dated 23.11.2009 but despite that, defendant has failed to vacate the property. Hence, the present suit.
(iv) On the other hand, as per defendant, the deceased Sh. V. M. Bhandari, was tenant under the previous owner i.e Smt. Nirmal Rani on the 3rd floor of the suit property at the rate of rent of Rs. 500/ per month and vide agreement dated 04.11.1991, Smt. Niraml Rani agreed to sell roof rights of the property and moreover, the tenancy had been inherited by the defendant along with two daughters and one son of the defendant. Further, the rent of Rs. 500/ was paid to Smt. Nirmal Rani till 1996 and the notice Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.11/25 dated 23.11.2002 was not in accordance with law.
(v) I have heard the arguments and perused the record and judgments filed by the parties.
(vi) It is well settled rule of law that in civil cases the burden of proof upon the plaintiff is preponderance of probabilities i.e after considering the evidence lead by both the parties, the court has to weigh in whose favour the probabilities lie or in other words whose version seems to be more probable. Further, it is also well established legal principle that the onus to prove its case is always upon the plaintiff and the suit of the plaintiff has to stand on its own legs.
(vii) Admittedly, Smt. Nirmal Rani was the original owner of the proeprty and Sh. V.M. Bhandari came into the possession of 3rd & 4th floors of the property as a tenant. Now, plaintiffs have filed two sale deeds dated 12.09.1996 (Ex. PW1/1 and Ex. PW1/2). Both the sale deeds are registered. The defendant has not disputed the sale deeds and, therefore, that plaintiffs have purchased the property by way of registered sale deeds.
(viii) The defendant has claimed ownership rights over the 4th floor of the property on the ground of Lease Agreement dated 04.11.1991. The plaintiffs have taken objections as to the admissibility of the documents under Section 33 to 35 to Indain Stamps Act and on the objections of the plaintiffs, defendant made endevor for getting the said document duly stamp from Collector of Stamp but the document was returned unstamped Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.12/25 with a certificate dated 07.02.2011 issued by concerned SDM and, therefore, vide order dated 28.11.2011, the said document was taken on record and it was ordered that "The unstamp document shall be read in evidence only as per necessary provisions of law." Now, admittedly, the documents is still not duly stamped. Section 35 of Indian Stamp Act, 1899 provides that "(e) Nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the govenment, or where it bears the certificate of the Collector as provided by Section 32 or any other provisions of this Act."
Further, Section 32 of the Act provides that: "(i) When an instrument brought to the collector under Section 31 is, in his opinion, one of a descrpition chargeable with duty, and
(a) The collector determines that it is already fully stamped.
(b) The duty determiend by the collector under Section 31, or such a sum as, with the duty already paid in respect of the instrument, is equal to the duty so determined, has bee paid, the collector shall certify by endorsement on such instrument that the fully duty (stating the amount) with which is chargeable has been paid.
(2) When such instrument is , in his opinion, not chargeable with duty, the collector shall certify in manner aforesaid that such instrument is not so chargeable.
(3) Any instrument upon which an endorsement has been made under this Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.13/25 Section, shall be deemed to be duly stamped or not chargeable with duty, as the case may be, and, if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it had been originally duly stamped."
But the letter dated 07.02.2011 is not a certificate issued under Section 32 of the Act, therefore, this document is inadmissible in evidence.
(ix) Further, for the sake of arguments, even if this lease agreement is considered, the relevant clause of lease agreement are as follows: "This agreement is agreed into on this 04th day of Novembre, 1991 between Smt. Nirmala Rani W/o Sh. Dharam Veer, Proprietor of M/S Swastik Sales Corporation, 4/1 D.B. Gupta Road, New Delhi (hereinafter called the lessor).
AND Sh. V.M. Bhandari S/o Sh. Rajmal Bhandari, resident of 29993000 Bhagat Singh Street No. 2, Pahar Ganj, New Delhi55 (hereinafter called the leasee).
(i) Tghat the party of the first party (lesor) has agreed to sell the roof of IIIrd floor of its premises being No. 3000 Bhagat Singh Street No. 2, Pahar Ganj, New Delhi55.
(iv) That the lessor may further lease any portion of the property to any person without taking any permission from the leasee.
(viii) That the party of the second party i.e lessor is already residing as tenant on the lease rent of Rs. 500/ per month on the 3 rd Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.14/25 floor of the above property."
Thus, as per the lease agreement, Smt. Nirmal Rani has just agreed to sell the roof rights of 3rd floor of the property, therefore, this can be considered only as an agreement to sell which is incapable of transferring any ownership right in favour of the leasee/V.M. Bhandari.
Further, as per clause No. 4 of the said lease agreement, the leaser/Smt. Nirmal Rani was free to further lease any portion of the property including the suit property without permission from leaseee/Sh. V.M. Bhandari. From this it is clear that there was no intention of the parties to transfer any ownerhip right for title of the property in favour of Sh. V.M. Bhandari, therefore, the defendant can not claim any ownership right qua any part of the property. Thus, it is clear that plaintiff have purchased the suit property from the previous owner/Smt. Nirmal Rani and Sh. V.M. Bhandari was in possession of the property (i.e 3 rd and 4th floors of the property) as a tenant and as plaintiffs have derived title or ownership right from the previous owner, the deceased Sh. V.M. Bhandari became tenant of the plaintiffs by operation of law.
(x) Further, plaintiffs have stated that Sh. V.M. Bhandari accepted the ownership of the plaintiff and agreed to pay the rent of Rs. 2,000 per floor. The testimony of plaintiffs stood up to the corss examination and, therefore, it can be said that plaintiffs have been able to prove that there Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.15/25 exists landlord tenant relationship between plaintiffs and late Sh. V.M. Bhandari.
Now, as per defendant, Sh. V.M. Bhandari died leaving behind defendant and two daughters and one minor son, therefore, they all inherited the tenancy rights and they all are required to be impleaded in the present suit. On the other hand, as per plaintiffs, the defendant dealt with the suit property as tenant, therefore, there is no requirement to implead other legal heris nor they have inherited any tenancy rights. Plaintiff has relied upon the following judgments i.e Smt. Rebti Devi Vs. Ram Dutt and another, AIR 1998 Supreme Court 310, Sh. Ashok Chintaman Juker and others Vs. Kshore Pandurang Mantri and another, Supreme Court Cases (2001) 5 SCC, Rizwan Ahmed Javed Shaikh and others Vs. Jammal Patel and others (2001) 5 Supreme Court Cases 7 and Kanji Manji Vs. Trustees, Port of Bombay, AIR 1963 SC 468.
Now, the onus shifts upon the defendant to prove that all the Lrs of Late Sh. V.M. Bhandari are in possession of the suit property and they inherited the legal rights but defendant has neither lead any evidence to show that other LRs of Late Sh. V.M. Bhandari are in possession of the property nor defendant has addressed any arguments. It is settled principle that the right of residential tenancy is not inheritable like statutory Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.16/25 tenancy in respect of the comercial premises. Therefore, it can be said that this plea of the defendant is not sustainable.
(xi) Now, as per defendant, the rate of rent is only Rs. 500/ per month for 3rd floor. On the other hand, as per plaintiffs, the rate of rent is Rs. 2,000/ per month per floor and the rent for the suit premises is Rs. 4,000/ per month. The plaintiffs have reitreated their averments in examination in chief and their testimony has stood up to the cross examination. On the other hand, defendant has relied upon rent receipts (Mark A and B) to prove that rent is Rs. 500/ per month only. Admittedly, as per Lease Agreement Dated 04.11.1991 (Mark C), the rate of rent was Rs. 500/ per month in the year 1991. Plaintiff has objected to the admisibility on the ground that rent receipts are not duly stamp. This document was also returned by the concerned SDM along with certificate dated 07.02.2011 refusing to stamp the document. It is settled principle that the rent receipts are required to be registered nor any stamp duty is payable on execution of rent receipts, therefore, these rent receipts can be read in evidence. To prove the rent receipts (Mark A and B), defendant has examined Sh. Prakash Chand Jain as DW2 who has deposed that the rate of rent of the premises as Rs. 500/ per month and he has also deposed that he used to collect the receipt from Smt. Nirmala Rani on behalf of Late Sh. V.M. Bhandari and two receipts (Mark A and B) have been issued by Smt. Nirmala Rani. Thus, as per DW2 we worked as an agent of Sh. V.M. Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.17/25 Bhandari while receiving receipts from Smt. Nirmala Rani. But during cross examination he has failed to show that he used to work with Sh. V.M. Bhandari in the office of the newspaper 'Prachand' allegedly being run by Sh. V.M. Bhandari. Once he has failed to show that he was even working with Sh. V.M. Bhandari, it can be said that he had not authority to pay rent on behalf of Sh. V.M. Bhandari and thus the testimony of DW2 is of no help of the defendant as he has failed to show the possibility of relationship of agony between Sh. V.M. Bhandari and him. Thus, defendant has failed to prove that the rate of rent is Rs. 500/ er month in 2003 i.e at the time of filing of the suit.
(xii) Further, admittedly, the rate of rent in the year 1991 was Rs. 500/ for 3rd floor and the alleged rent receipts from have been issued for the rent from 1995 to June, 1996 @ Rs. 500/ per month only. It is highly improbable that the rate of rent from constant without any increase for so many years i.e since 1991 to 1995.
Thus, it is now a well established principle that a landlord is entitled to have 10% increase in the rent and, therefore, it be considered the said 10% increase in rent of Rs. 500/ per floor since 1991, then the rate of rent is Rs. 2,000/ per month per floor and the suit has bee filed in 2003 i.e after elapse of 12 years from last paid rent i.e Rs. 500/ per month. Thus, it can be said that plaintiffs have been able to prove that rate of rent is Rs. 4,000/ per month for the suit premises.
Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.18/25
(xiii) Further, the defendant has taken plea that the tenancy has not been duly terminated in view of Section 106 of Transfer of Property Act. Admittedly, there was no rent agrement between parties and the tenancy was monthly tenancy and the tenancy was residential purposes only and, therefore, a notice of 30 days is sufficient to terminate the tenancy under Section 106 of the Transfer of Property Act. As far as the service of notice is concerned, in view of the judgments M/S Jeevan Diesels & Electrical Ltd. Vs. M/S Jasbir Singh Chadha (HUF) & Anr. 2011 (182) DLT 402, Sh. Ashwani Bhatia Vs. Sh. Suresh Rastogi, DOD 10.04.2012 in RFA No. 167/2012 and C.M.No. 6164/2012 and Sh. Sharwan Aggarwal Vs. Kailash Rani, DOD 09.01.2012, it can be said that "even if it is not proved that a legal notice was served prior to filing of the suit, service of summons of the suit can be taken as a notice U/sec 106 of the Transfer of Property Act."
Thus, plaintiffs have been able to prove that tenancy has been duly terminated.
(xiv) It is settled principle that in a case for possession on the basis of landlord tenant relationship, plaintiff is required to prove following three ingredients i.e
(a) Landlord tenant relationship exists between plaintiff and defendant.
(b) The tenancy has been duly terminated.
(c) The rate of rent is above Rs. 3,500/ and DRC Act has not
Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.19/25
application to the suit property.
In the present suit, plaintiffs have been able to prove all the three ingredients and plaintiffs are entitled to relief of possession of the suit property.
(xv) As far as identification of the property is concerned, the same isn ot in dispute. Moreover, property is being distinct identity. Plaintiff has filed site plan Ex. PW1/5 which is not disputed by defendant. Further, defendants have stated that on 22.11.1996, plaintiff has visited the office of Sh. V.M. Bhandari and has threatened to kill him and a police complaint to that effect was also lodged but no copy of any such complaint has been filed nor defendant has summoned any record from police officials to support her contention. Therefore, this plea taken without evidence, falls to the ground.
(xvi) Further, plaintiff has claimed an amount of Rs. 1,44,000/ as an arrears of rent for three years producing the legal notice dated 23.11.2002. As per plaintiff, Sh. V.M. Bhandari has never paid any rent but due to bar of period of limitation, plaintiff is claiming rent only for three years preceding 23.11.2002 i.e from the date of legal notice. On the other hand, defendant has denied any such liability. But admittedly, defendant has never paid any rent to Smt. Nirmala Rani after 1996 nor defendant has paid any rent to plaintiff, therefore, plaintiff being landlord of defendant is entitled to recover the arrears of rent claimed by him. Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.20/25 (xvii) Further, plaintiff has sought decree of Rs. 1,200/ for the damages @ Rs. 1,200/ per day from 01.01.2003 till 08.01.2013 and further pendent lite and future damages/mesne profits at the rate which court may arrive at after holding enquiry undeer order 20 rule 12 CPC. Plaintiff has not lead any evidence as to how plaintiff is entitled to damages @ Rs. 1,200/ per day from 01.01.2003 nor plaintiff has led any evidence on the point of pendent lite and future damages/mesne profits. (xviii) At this stage, it is relevant to discuss the judgment Shriram Pistons & Rings Ltd Vs. Basant Khatri, 190(2002) Delhi Law Times
769. In the case of M/s M.C. Aggarwal HUF Vs. M/s. Sahara India & Ors., 2011(183) DLT105 that even if a landlord has failed to lead evidence with respect to the prevalent rents, yet in such circumstances, this court can take judicial notice of increase in rent of metropolitan cities, more so in commercial areas that a 15% increase of rent every year should be payable by a tenant to a landlord. For each year thereafter as per the judgment of the M/s M.C. Agarwal HUF (supra) there will be a 15% increase over the last paid rent. Thus, without holding any enquiry under order 20 rule 12 CPC, the damages/mesne profits can be determined.
In view of the above quoted judgments and in view of the fact that property is situated in Pahar Ganj which is one of the posh and densly Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.21/25 populated area of defendant, plaintiff is entitled to mesne profits commencing from 01.01.2003 with a 15% yearly increase cumulatively i.e 15% increase which will be payable from second year, third year, fourth year etc after the termination of tenancy will be 15% increase of the mense profits on the total of mesne profits which are payable at the end of the first year, second year etc respectively.
(xix) Further, the plaintiffs are also entitled to simple interest @ 7% per annum on the arrears of rent every year. Accordingly, the plaintiff is entitled to mesne profits commencing from 01.01.2003 with a 15% increase which will be payable from second year, third year, forth year etc after the termination of tenancy along with simple interest @ 7% per annum on mesne profits which are payable at the end of the first year, second year etc respectively.
(xx) Thus, in view of the above discussion, it is held that plaintiff is entitled to damages/mesne profits from 01.01.2003 with a 15% yearly cumulative increase after termination of tenancy along with simple interest @ 7% per annum from the end of each illegal month of occupation and till the possession is handed over to plaintiff. In view of the above discussion, the issues No. 5 to 7 are decided in favour of the plaintiffs and against the defendant.
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(B) Issue No. 1: Whether this court has no jurisdiction to try, entertain and decie the suit in view of bar of Section 50 of DRC Act?OPD. The onus to prove this issue is upon the defendant. As has already been discussed during the findings upon the issues No. 5 to 7 that the plaintiffs have been able to prove that rate of rent is Rs. 4,000/ per month for the suit premises, therefore, the suit is not barred by Section 50 of Delhi Rent Control Act. Therefore, without repeating the discussion, the issue no. 1 is decided in favour of the plaintiffs and against the defendant.
(C) Issue No. 2: Whether the suit is bad for nonjoinder of necessary parties?OPD.
The onus to prove this issue is upon the defendant. As has already been discussed during the findings upon the issues No. 5 to 7 that the plaintiffs have been able to prove that the suit is not bad for non joinder of necessary parties, therefore, the issue No. 2 is decided in favour of the plaintiffs and against the defendant.
(D) Issue No. 3: Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.23/25 Whether there exists a relationship of landlord and tenant between the plaintiff and defendant?OPP.
The onus to prove this issue is upon the plaintiff. As has already been discussed during the findings upon the issues No. 5 to 7 that plaintiffs have been able to prove that there exists landlord tenant relationship between the parties, therefore, the issue No. 3 is decided in favour of the plaintiffs and against the defendant.
(E) Issue No. 4: Whether the tenancy of the defendant had been validly terminated as per Section 106 of the Transfer of Property Act?OPP.
The onus to prove this issue is upon the plaintiff. As has already been discussed during the findings upon the issues No. 5 to 7 that plaintiffs have been able to prove that the tenancy of defendant has been validly terminated as per Section 106 of Transfer of Property Act, therefore, the issue No. 4 is decided in favour of the plaintiffs and against the defendant.
11. As all the issues have been decided in favour of the plaintiffs and against the defendant, the suit is liable to be decreed. Accordingly, the Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.24/25 suit of the plaintiffs is decreed in favour of the plaintiffs and against the defendant and plaintiffs are entitled for the following reliefs:
(a) A decree for ejectment in respect of 3rd and 4th floor of the property bearing No. XIV/2999 and 3000 (old no.XIV/3935A) situated in Gali No.2 Bhagat Singh Street, Sangtarashan, Pahar Ganj, New Delhi as shown in red colur in the site plan Ex. PW1/5.
(b) A decree of Rs.1,44,000/ in favour of the plaintiffs and against the defendant towards the arrears of rent for the preceding three years from the date of legal notice dated 23.11.2002.
(c) A decree of damages/mesne profits from 01.01.2003 with a 15% yearly cumulative increase after termination of tenancy along with simple interest @ 7% per annum from the end of each illegal month of occupation and till the possession is handed over to plaintiffs.
Parties to bear their own costs.
Decree Sheet be prepared after payment of court fee on arrears of rent/damages/mesne profits and on amount of interest till the date of judgment. File be consigned to the record room after due compliance.
Announced in the open court on 19th May, 2014 (PRABH DEEP KAUR) CIVIL JUDGE05(WEST) THC/DELHI/19.05.2014 Suit No. 958/10 Naresh Kumar Aggarwal Vs. Asha Rani Page No.25/25