Delhi District Court
Sh. Khwaja Hasan Sani Nizami vs Sh. Mohd. Salman on 26 February, 2014
IN THE COURT OF Ms. POOJA GUPTA: CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Civil Suit no.734/10
Unique ID no.: 02406C0516632010
IN THE MATTER OF:
Sh. Khwaja Hasan Sani Nizami,
S/o.: Late Sh. Khwaja Hasan Nizami,
R/o House No.133/134, Basti Dargah,
Hazrat Niazmuddin,
New Delhi110013. ......Plaintiff
Versus
1. Sh. Mohd. Salman,
S/o Late Babbu Auazuddin,
2. Sh. Maksood Ahmed,
S/o Shakoor Ahmed,
Both R/o.: South West Portion of Plot No.58(Old)
Baoli Gate, Basti Dargah,
Hazarat Nizamuddin,
New Delhi110013. .....Defendants
DATE OF INSTITUTION : 14.09.2009
DATE OF RESERVING THE ORDER : 17.02.2014
DATE OF DECISION : 26.02.2014
JUDGMENT
1. By way of the present suit the plaintiff is seeking recovery of Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 1 of 27 possession of portion of open vacant land of South West portion of plot no.58 bounded by a boundary wall situated near Baoli Gate, Dargah Hazrat Nizamuddin, New Delhi as shown in red in site plan against the defendants along with a decree for recovery of Rs.1,34,000/(Rs. One Lakh Thirty Four Thousand only) with pendente lite and future interest @ 18% per annum as well as mesne profits @ Rs. 5,000/ per month with interest @18% per annum and costs of the suit.
Brief facts as per the plaint
2. The plaintiff is the owner of the property Galib Manzil bearing old municipal no. 58 situated near Baoli Gate, Dargah Hazrat Nizamuddin, New Delhi measuring about 1170 Sq. meters. The defendants were inducted in the portion of open vacant land in South West measuring about 115 Sq. yards in 1982 at monthly rent of Rs.250/ per month. The defendants illegally and without the consent of the plaintiff raised unauthorized construction i.e. a shaded room, another room at the entry of the plot, a latrine and a staircase (as shown in green in the site plan).
3. The tenancy was month to month and the defendants paid the monthly charges till April 1998 after which they neither paid nor Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 2 of 27 tendered the monthly rent despite repeated requests. Arrears of rent from 10.05.1998 to 31.07.2007 @ Rs. 250/ per month are due and payable by the defendants to the plaintiff. A legal notice dated 11.07.2007 was also sent by the plaintiff to which the defendants sent a frivolous reply along with a demand draft for Rs.9,000/ which was not accepted by the plaintiff as the same was not towards the entire period of occupation charges due from the defendants. Hence the present suit for recovery of Rs.9,000/ towards admitted arrears of rent along with damages of Rs. 1,25,000/ @ Rs.5000/ per month from 01.08.2007 to 31.08.2009 for a total of Rs.1,34,000/ along with recovery of possession and interest. Facts as per written statement
4. Preliminary objections have been raised by the defendants in respect of the suit being barred under Section 50 of the Delhi Rent Control Act; of the suit being without cause of action; of the court lacking the pecuniary jurisdiction as well as the suit being under valued and inadequate court been being paid as also the suit having been filed to harass the defendant to increase the rent.
5. On merits, the defendants have denied the ownership of the plaintiff and it has been asserted that the defendants were inducted as Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 3 of 27 tenants. It has also been stated that in the year 1982 the suit premises was not an open vacant plot but was a constructed pakka shed, two small rooms and latrine. The boundaries as described by the plaintiff have also been challenged.
6. It has been stated that the suit property was got vacated from Sh. Mohd. Saffi in 197879 through court and the plaintiff had approached the defendants for letting it out but the defendants were not inclined to take on rent the open plot as the same did not suit the defendants who dealt with coolers, water pump and cooler fans. On request of the defendants the plaintiff had constructed on the plot for letting it out to the defendants and to accommodate the expenditure incurred by the plaintiff the rent was increased from Rs.200/ to Rs.250/ per month. It has been asserted that the defendants constructed a furnace room in the year 1997 at their own cost and with permission of the plaintiff.
7. It has been denied that the plaintiff used to issue rent receipts. It has been stated that the rent has been paid upto 31.03.2010 @250/ per month. It has been reiterated that entire construction was raised by the plaintiff before letting it out on rent to the defendants and no Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 4 of 27 illegal constructions have been raised by the defendants. It has been denied that the defendants are in arrears of rent since May 2008. It has been stated that the demand draft of Rs.9,000/ was never sent back to the defendants and that the tenancy of the defendants has not been terminated as per Section 106 of the Transfer of Property Act. It has been denied that the plaintiff is entitled to any relief as claimed. Rest of the averments have been denied on merits.
Replication
8. In the replication, the averments of the written statement have been denied and the contents of the plaint have been reiterated and reaffirmed as being true and correct.
Issues
9. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor of this Court on 01.03.2011:
1. Whether the suit of the plaintiff is barred under Section 50 DRC Act?OPD.
2. Whether the suit of the plaintiff is hit by provisions of Order 7 rule 11 CPC? OPD
3. Whether the suit of the plaintiff has not been properly valued for the purpose of court fees and jurisdiction? OPD.
4. Whether this court has no pecuniary jurisdiction to deal with the Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 5 of 27 matter? OPD
5. Whether the plaintiff is entitled to decree of recovery of possession?OPP
6. Whether the plaintiff is entitled to decree of damages ?OPP
7. Whether the plaintiff is entitled to decree of arrears of rent?OPP
8. Relief if any.
Evidence
10. To prove his case the plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A on similar lines as the plaint and was duly cross examined. He also relied upon the documents ie Site plan (Ex.PW1/1); Rent receipts (Ex.PW1/3); legal notice(Ex.PW1/4); UPC, postal receipt (Ex. PW1/5, Ex.PW1/6); Reply to legal notice (Ex.PW1/7); Demand draft (Ex.PW1/8); Lease deed dated 20.07.1987 (Ex.PW1/9). Ex.PW1/9 was objected to by the defendant in respect of admissibility. During cross examination, PW1 was confronted with the documents i.e. Ex.PW1/D1 to Ex.PW1/D3.
11. The plaintiff also examined Sh. Syed Mohd. Nizami as PW2 who tendered his evidence by way of affidavit Ex.PW2/A and who identified the signatures of his father as a witness on Ex.PW1/9. He was duly cross examined and during cross examination was confronted with the AD Card (Ex.PW2/D1).
Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 6 of 27
12. Sh. Nawabuddin, Advocate was examined by the plaintiff as PW3 who tendered his evidence by way of affidavit (Ex.PW3/1) and relied upon translation of rent deed (Ex.PW3/A) and translation of the three rent receipts (Ex.PW3/B to Ex.PW3/D). The witness was duly cross examined by the defendant.
13. On the other hand, to prove their defence the defendants examined the defendant no.1 as DW1 who tendered his evidence by way of affidavit (Ex.DW1/A) on similar lines as his written statement and was duly cross examined. He also relied upon the documents ie Sales tax receipt for 2001 (Ex.DW1/1), Receipt for electricity bill of Rs.5,950/ and Rs.1,300/ (Ex.DW1/2,Ex.DW1/3), electricity bill for Rs.20,582/ and Rs. 19,182/ (Ex.DW1/4, Ex.DW1/5), Covering letters(Ex.DW1/6), demand draft (Ex.DW1/7), Postal receipts (Ex.DW1/8), AD card (Ex. DW1/9), Money order receipt (Ex.DW1/10), Factory licence (Ex. DW1/12), Photocopy of sales tax for 198384 (Ex.DW1/13). Ex.DW1/6 and Ex.DW1/7 were objected to as to mode of proof while the photocopy of bank pass book (Ex.DW1/11) was deexhibited as were sale tax orders for year 1984 and 2001. During cross examination DW1 was confronted with sales tax certificate dated 10.08.1984 (Ex.DW1/P1). Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 7 of 27
14. The defendant also examined Sh. Mohd. Afzal Abbasi as DW2 and Sh. Nisar Ahmed as DW3 who deposed as to being present when the premises were let out and tendered their evidence by way of affidavit Ex.DW2/A and Ex.DW3/A respectively. The witnesses were duly cross examined on behalf of the plaintiff.
15. No rebuttal evidence was led by the plaintiff.
16. Final arguments have been advanced on behalf of both the parties.
17. I have carefully considered the submissions made on behalf of the parties and given my thoughtful consideration to the evidence on record. From the evidence on record my issue wise findings are as under:
Issue no.1:Whether the suit of the plaintiff is barred under Section 50 DRC Act?
18. The onus to prove this issue was on the defendants. As it is admitted case of the parties that rent of the suit premises is Rs. 250/ per month, it was for the defendant to prove that the suit premises are "premises" within the meaning of Delhi Rent Control Act. The relevant provision of the Delhi Rent Control Act is reproduced as under:
"(i) "premises" means any building or part of building which is, or is intended to be, let separately for use as a residence or for commercial use Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 8 of 27 or for any other purpose, and includes,
(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;
(ii)any furniture supplied by the landlord for use in such building or part of the building;
but does not include a room in a hotel or lodging house.
19. To prove that the suit premises was a building or part of building, DW1 has deposed in his evidence by way of affidavit Ex. DW1/A that in April 1982 the plaintiff approached the defendants for letting out the suit property which was a vacant plot at that time. DW1 has further deposed that upon refusal of the defendants to take on rent the vacant plot, the plaintiff agreed to build the accommodation as per the business requirements of the defendants and constructed as per the settlement. DW2 Mohd Abdul Abbasi has deposed in his evidence by way of affidavit Ex. DW2/A that premises were let out to the defendants by the plaintiff in his presence in June 1982 and that the plaintiff had opened the lock of the main gate and in his presence the defendant put their own lock on the suit premises. DW3 Sh Nisar Ahmad has deposed on similar lines as DW2 in Ex. DW3/A.
20. During his crossexamination, DW1 deposed that the construction of the shed, rooms, latrine and bathroom was completed in Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 9 of 27 34 months. He denied the suggestion of the plaintiff that it was an empty plot and nothing was constructed there on or that the construction was carried on later by the defendant. DW1 also denied the suggestion that it is for this reason that in the rent agreement and in the receipts it was mentioned that it was a plot. The plaintiff was thus unable to elicit any contradiction from the DW2 or DW3 in respect of his testimony as to construction on the suit property during his crossexamination. However, DW3 deposed during his crossexamination that as far as he remembered, there was no change in the construction in the suit property since June, 1982 till the time that he last visited the suit premises ie around June 2012 which testimony does not support the version of the defendants who themselves claim that in 1997 a furnace room was constructed in the suit property.
21. No other corroborative evidence either oral or documentary has been led by the defendants to prove that suit property was built up at the time of letting out.
22. On the other hand, the plaintiff as PW1 has deposed in his examination in chief that the property which was let out was a vacant plot of land and that the defendants had illegally raised unauthorised Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 10 of 27 construction thereon as shown in green in the site plan. During his cross examination PW1 has deposed that he could not say when the room shown in the site plan has been constructed and further deposed that he did not know the year when WC has been constructed. PW1 has further deposed during his crossexamination that the defendant has done unauthorized construction after taking the premises on rent but he did not know the exact year. PW1 has deposed that he has not filed suit against unauthorized construction nor took any other action. He denied the suggestion that he got two rooms and one shed and one toilet constructed on the plot before giving the same on rent to the defendants and volunteered that he gave on rent an open plot of land. PW1 has further deposed during crossexamination that defendants had not done any pakka construction. Thus the defendants was unable to elicit any admission from the plaintiff as to the suit property not being a vacant plot of land at the time of letting out.
23. To disprove the assertions of the defendant and to prove a vacant piece of land was let out, PW1 has relied upon a lease deed dated 20.07.1987 (Ex.PW1/9) and its translated copy Ex.PW3/A. No questions were put to the PW1 or PW3 during crossexamination about Ex.PW1/9 Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 11 of 27 being false. Hence in view of the absence of any crossexamination by the defendant as to Ex. PW1/9, the document Ex. PW1/9 is deemed to be admitted by the defendants and its contents can be read against them.
24. During the course of the final arguments questions were also raised as to the document Ex. PW1/9 not being proved as the second witness was not examined in court and only the signatures of the witness Mehndi Nizami being proved by his son. However, the argument as raised is not consequential for adjudication of the present dispute as the defendants have not disputed the document Ex. PW1/9 or its translation during the crossexamination though during the crossexamination of DW1, he has denied his signatures on Ex. PW1/9 as well as its execution by himself which amounts to a self serving denial at best.
25. Objection has also been raised by the defendants as to the site plan mentioned in Ex. PW1/9 and Ex. PW3/A not being filed by the plaintiff hence the document being incomplete, cannot be relied upon by the court. There is merit in the said contention of the defendants in as much as as per the clause 1 of Ex. PW3/A which is a translated copy of Ex. PW1/9, the property which was taken on rent has been described to be as per the site plan enclosed with the lease deed Ex. PW1/9 and in the Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 12 of 27 absence of any explanation put forth by the plaintiff for nonproduction of the site plan when the other pages of the lease deed has been produced, the withholding of the best evidence available with the plaintiff to prove the nature of premises which were let out to the defendants, leads to an adverse presumption that the site plan if had been produced would not have supported the case of the plaintiff that the suit premises was vacant at the time it was let out.
26. Be that as it may, the bare reading of Ex. PW1/9 and Ex. PW3/A reveals that it is conspicuously silent as to any averment as to creation of the tenancy in 1982 ie prior to the execution of the lease deed in 1987. Thus it cannot be said that merely by the recital at point 4 of the Ex. PW3/A ie that the two shed would be constructed by the defendants on their own expense with prior permission of MCD and DDA for their use, the plaintiff has proved that the premises was vacant at the time it was let out i.e. in 1982.
27. Even the reliance placed by the plaintiff on the rent receipt Ex.PW1/3 (Colly.) the translated copies of which have been tendered as Ex.PW3/B to Ex.PW3/D by PW1 to contend that even in the said rent receipts the nature of the property has been described to be a plot and the Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 13 of 27 own deposition of the plaintiff that he always used to issue rent receipts to the defendants in lieu of the rent receipt received by him from the defendants, is contrary to the stand taken by the plaintiff during his cross examination as PW1 has contradicted himself as he has deposed that he has not issued any rent receipts to the defendant for the rent paid. Even the defendant during his cross examination has not admitted to his signatures being on the rent receipts Ex. PW1/3. That being so the rent receipts, the execution of which has been denied by both the plaintiff as well as the defendant no.1 have not been proved and hence cannot be relied upon.
28. The argument put forth by the defendants as to the application of Section 115 of the Indian Evidence Act as well as reliance on the judgment of the Privy Council in the case of "A H Forbes v Sir LE Ralli" cited as AIR 1925 PC 146 is misplaced for the reason that the same is distinguishable on the facts of the case as well as keeping in view that it is not the case of the defendants that they were permitted by the plaintiff to carryout construction on the suit premises, rather it has been their case throughout that except a furnace room, no other construction was carried out by them.
Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 14 of 27
29. The judgment in "Ajit Singh v Ram Swarop Devi" of the Hon'ble Delhi High Court cited as 55 (1994) DLT 739 relied upon by the plaintiff reiterates the settled law that the mere construction of a tin shed would not change the nature of the property which was let out however, the said judgment is distinguishable on facts as in the cited case it was admitted by the tenant that the plot was let out to him and he had built the shed subsequently which is not so in the present case.
30. The judgment in "Vinod Nagpal v Bakshi S. Kuljas Rai" of the Hon'ble Delhi High Court cited as 37 (1989) DLT 278 and in "Ram Prakash Chawla v Amrit Kaur" cited as 20 (1981) DLT 145 relied upon by the plaintiff reiterates the settled law that what has to be seen is the nature of the property at the time of letting out. However, as discussed above the plaintiff has not been able to prove that the vacant plot of land was let out to the defendants and hence this judgment is of no assistance to the plaintiff.
31. Even the observations of the Hon'ble Delhi High Court in para 20 in "Vinod Nagpal v Bakshi S. Kuljas Rai" (Supra) ie "It is thus clear that the property in order to be 'premises' within the contemplation Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 15 of 27 of Delhi Rent Control Act has to be in the nature of a roofed structure, or containing such structures thereon. Any property which is described as a vacant plot simpliciter, in document witnessing the transaction, cannot, in the absence of any internal evidence furnished by the said document, to the contrary, be regarded as a building" is also of no assistance to the defendant in the absence of Ex. PW1/9 being a complete document.
32. It is also duly noted that the plaintiff as PW1 has categorically deposed in his evidence by way of affidavit that defendants have raised illegally a shaded room, another room on the entry of the plot, a latrine and a staircase on the vacant plot which was let out. It is thus not the case of the plaintiff that only temporary structures were later on constructed by the defendants. However, for the first time during his crossexamination, PW1 has deposed that the defendants had not done pakka construction and also volunteered that it was a tin shed. Even during crossexamination of DW1, no suggestion was put to him as to the construction being of temporary nature or being in the nature of tin shed. Thus the testimony of DW1 as to the construction of the pucca shed, two rooms and latrine has gone unrebutted.
33. Thus, in view of the entire above discussion, as also keeping Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 16 of 27 in view that none of the parties have been able to lead positive evidence to support their respective stands, in view of the adverse presumption drawn against the plaintiff by the nonproduction of the site plan forming part of the Ex. PW1/9, the defendants have been able to discharge the onus cast upon them and thus on the basis of preponderance of probabilities, this issue is decided against the plaintiff and in favour of the defendants.
Issue no. 2: Whether the suit of the plaintiff is hit by provisions of Order 7 rule 11 CPC?
34. The onus to prove this issue was on the defendant in view of the objection raised in the written statement as to the suit being without any cause of action as the defendants are tenants in the suit premises and not trespassers. It is an admitted case of the parties that the defendants are tenants of the plaintiff. No averment has been made by the plaintiff that the defendants are trespassers in the suit property. That being so, it cannot be said that the same has resulted into nondisclosure of any cause of action sufficient for rejection of the plaint under Order 7 rule 11 CPC. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 17 of 27 Issue no.3: Whether the suit of the plaintiff has not been properly valued for the purpose of court fees and jurisdiction? and Issue no 4: Whether this court has no pecuniary jurisdiction to deal with the matter?
35. These issues are being decided together as common questions of fact and law arise therein. The onus to prove both these issue was on the defendant in view of the objection raised by them in the written statement. From the evidence on record it is clear that the relationship of landlord/tenant between the parties is not in dispute. It is also not in dispute that the monthly rent was Rs. 250/ per month.
36. Keeping in view that by way of the present suit the relief of possession has been sought by the landlord from the tenant, by virtue of Section 7(xi)(c) of the Court Fees Act, the court fees is to be paid on the annual amount of rent of the suit property. In the case at hand, the annual rent @ Rs. 250/ per month is Rs. 3,000/ which is the valuation which has been done by the plaintiff as well. Nothing has been brought on record by the defendant to prove how the valuation is not proper. The defendant has also not placed on record any evidence to prove that the pecuniary jurisdiction of the court is ousted in the present case. Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 18 of 27
37. The judgment of the Hon'ble Delhi High Court in "S. Manjinder Singh v Krishna Bhat" cited as 206 (2014) DLT 58 is distinguishable in the facts of the case as the same pertained to the valuation in case of declaration and consequent cancellation of a Gift Deed and not in a suit between landlord and tenant inter alia for the recovery of possession.
38. Even the reliance placed by the defendants on the judgment of the Hon'ble Delhi High Court in " Gobind Sahai v Narain Dass" cited as ILR 1972 Delhi 55 to contend that the suit property forming part of the bigger portion which is also a building is of no assistance to the defendants to prove that the valuation as done by the plaintiff is not proper or the pecuniary jurisdiction of this court is ousted.
39. Thus, in the absence of any evidence led by the defendant to discharge the onus cast upon them and keeping in view the above discussion, this issue is decided against the defendants and in favour of the plaintiff.
Issue no. 5: Whether the plaintiff is entitled to decree of recovery of possession?
40. The onus to prove this issue was on the plaintiff. The Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 19 of 27 relationship between the parties as landlordtenant has not been disputed and hence was not required to be proved by leading evidence. The rate of rent is also admitted between the parties to be Rs. 250/ per month. It is also not in dispute that the plaintiff served a legal notice Ex. PW1/5 terminating the tenancy of the defendant as the same was duly received and replied to by the defendants vide Ex. PW1/7.
41. In view of the settled law there is merit in the contention of the plaintiff that in view of Section 116 of the Indian Evidence Act, the defendants are estopped from denying the title of the landlord in the suit property. The cited caselaw in "Payal Vision Ltd. V Radhika Choudhary" cited as 2012 (4) CrLJ 162 SC also reiterates the same. Hence even in the present case, the plea of the defendants as to the plaintiff not being owner of the suit property is devoid of merits for the adjudication of the present dispute.
42. Be that as it may, in view of my findings on issue no.1 and the bar of Section 50 of the Delhi Rent Control being applicable to the present case, the plaintiff is dis entitled to seek the recovery of possession of the suit premises through this court.
43. During the course of arguments, a contention was put forth Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 20 of 27 by the plaintiff that in the absence of the defendant no.2 deposing in the court and in view of his signatures on the Ex. PW1/9 and Ex. PW1/3, the same were deemed to be admitted by the defendants and that even by examination of the signatures of the defendants on the said documetns, the court could come to the conclusion that the defendants had signed the same and hence the documents Ex. PW1/9 and Ex. PW1/3 have been proved by the plaintiff. However, in the considered opinion of the court, the argument put forth is devoid of merits in as much as for reasons recorded in issue no.1 while Ex. PW1/9 as filed has not been disputed in its entirety, Ex. PW1/3 has been disproved by the plaintiff himself. Further it is an admitted position that the signatures on the documents are in Urdu and nothing has been placed on record by the plaintiff to absolve him of his duty to prove his document by leading own evidence and the plaintiff cannot be permitted to prove the document on the comparison of the signatures by the court.
44. The court is however, in agreement with the contention of the plaintiff that in view of Section 91 and 92 of the Evidence Act, oral evidence is excluded once the written document is proved. Even in the cited judgment, "Bhandari Construction Company v Narayan Gopal Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 21 of 27 Upahye" cited as (2007) 3 SCC 163 the Hon'ble Apex Court has reiterated the same legal proposition. However, the cited judgment is not applicable in the case at hand being distinguishable on the facts as also keeping in view that as observed in the issue no.1, the document Ex. PW1/9 not being a complete document in the absence of the site plan being filed the document Ex. PW1/9 cannot be relied upon.
45. Reliance has been placed by the plaintiff on his own site plan Ex. PW1/1 as well and it has been contended that in the absence of any site plan having been filed by the defendant, the plan as filed by the plaintiff was deemed to be proved. The cited judgments of the Hon'ble Delhi High Court in "Harivansh Lal Rabra v Madan Lal Jolly" cited as 65 (1997) DLT 480 as well as in "Vijay Dutt Sharma v Prahlad Rai Jaithuria" in RC.REV. 185/2013 reiterate the settled law that if the site plan of the landlord is proved and no counter site plan is filed by the tenant, the site plan of the landlord has to be accepted as correct. This court is bound by and in agreement with the said proposition. However, both these judgments are of no assistance to the plaintiff in as much the plaintiff has failed to prove his site plan as during crossexamination, PW1 has himself admitted that "there is no staircase as shown in the site Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 22 of 27 plan". Thus, when the plaintiff himself is contradicting the correctness of the site plan as filed by him, the site plan cannot be said to have been proved and hence even in the absence of the site plan filed by the defendants, the site plan Ex. PW1/1 cannot be said to have been proved. Accordingly, in view of my findings on issue no.1 this issue is decided against the plaintiff and in favour of the defendants.
Issue no.6: Whether the plaintiff is entitled to decree of damages?
46. The onus to prove this issue was on the plaintiff. However, in view of my findings on issue no. 1, it has already been held that there is a bar to the relief of recovery of possession under the Delhi Rent Control Act and that the same is also attracted in the present suit. Hence even after the notice for terminating the contractual tenancy (month to month tenancy) has been served upon the defendants/tenants, the continued possession of the defendants in the suit property cannot be said to be akin to that of unauthorised occupant as the possession of the defendants/tenants of the suit property is under the protection provided to him under the statute ie the Delhi Rent Control Act and hence his possession not falling within the ambit of "wrongful" as also keeping in Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 23 of 27 view that since the plaintiff has not been able to prove his entitlement to the relief of recovery of possession, the question of entitlement of the plaintiff to the relief of damages does not arise. Accordingly, this issue is decided against the plaintiff and in favour of the defendants. Issue no. 7: Whether the plaintiff is entitled to decree of arrears of rent?
47. The onus to prove this issue was on the plaintiff. It is not in dispute that the rent of the premises is Rs. 250/ per month. It is also not in dispute that the defendants had tendered a sum of Rs. 9,000/ towards the arrears of rent from 31.07.2004 till 31.07.2007 by way of demand draft which was never encashed by the plaintiff.
48. During his crossexamination, PW1 has deposed that he had not directly received demand draft of Rs. 9000/ from the defendants. He however gave evasive replies to the questions as to receiving the demand draft along with the reply to the legal notice. During his cross examination PW1 has denied receiving any money order for rent from January 2008 till June 2008 from the defendants and denied that he had refused to accept the same. PW1 has also evasively denied receiving the draft of Rs.1250/ dated 04.10.2007; a draft of Rs.1500/ dated Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 24 of 27 11.02.2008; draft of Rs.1500/ dated 16.08.2008; draft of Rs.1500/ dated 15.02.2009; draft of Rs.1500/ dated 13.10.2009; draft of Rs.750/ dated 15.02.2010; draft of Rs.750/ dated 04.02.2010 and a draft of Rs.3,000/ dated 25.01.2011 from the defendants.
49. On the other hand, during his crossexamination DW1 has deposed that after 2005, the rent was being paid by way of draft as the plaintiff did not accept the rent. He has further deposed that the documents showing the payment of rent must be with his advocate thereby. It is duly noted that the testimony of the DW1 is as to payment of rent by draft after 2005 and not by money order, thereby necessitating the production of some corroborative evidence to prove payment of rent by money order in 2008 which has not been done by the defendant in the instant case. Further the nonproduction of the documents showing payment of rent as alleged by the defendants also leads to the inference that as the defendants have not placed on record the best evidence to prove the payment of rent till January 2013 as claimed by them, no such document was in existence to support the claim of the defendants as no payment was made by them to the plaintiff.
50. It is also noted that despite objection being taken as to mode Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 25 of 27 of proof for Ex. DW1/7, for reasons best known to the defendant he did not examine any official from the postal department to prove the payment of rent by way of demand drafts which thus remain unproved. Further in view of the testimony of DW1 who has also deposed in his cross examination that till date he has not deposited any amount in the court till date read conjointly with the failure of the defendants to produce documents to prove payment of rent, the plaintiff has discharged his onus qua nonpayment of the rent by the defendants.
51. Thus, from the totality of the evidence on record, in view of the demand draft Ex. PW1/8, which amounts to an admission of the outstanding liability to pay Rs.9000/ towards arrears of rent as on 14.08.2008 giving rise to a fresh period of limitation, the plaintiff has proved his entitlement to award of arrears of rent of Rs. 9,000/ with rent @ Rs. 250/ per month from 01.08.2007 till the date of the decree ie for 79 months. However, as the plaintiff chose not to encash the demand draft despite the rent being tendered in August 2007, hence he is not entitled to claim interest on the same. Accordingly, this issue is decided against the defendants and in favour of the plaintiff. Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 26 of 27 Relief
52. In view of my findings on issue no. 1 and 7, the suit of the plaintiff is only partly decreed against the defendants and the decree for recovery of Rs. 28,750/ (Rs. Twenty Eight Thousand Seven Hundred and Fifty only) is passed in favour of the plaintiff against the defendants towards arrears of rent as Section 50 Delhi Rent Control Act does not operate as a bar in a suit for recovery of arrears of rent and it is only eviction of the tenant which is barred under the same. The plaintiff is also awarded pendente lite interest on Rs. 19,750/(Rs. Nineteen Thousand Seven Hundred and Fifty only) @ 10% per annum and future interest on the entire decreetal amount @ 6% per annum from the date of the decree till realization. In the facts of the case, the parties to bear their own costs.
53. Decree sheet be prepared accordingly.
54. File be consigned to the record room after necessary compliance.
Announced in the open court (Pooja Gupta)
on 26.02.2014 Civil Judge03(South District)
New Delhi
Civil Suit No.734/10 Sh. Khwaja Hasan Sani Nizami Vs. Sh. Mohd. Salman & Anr. Page no. 27 of 27