Delhi District Court
D-2 vs Mr. Sohan Prasad on 8 October, 2013
1
IN THE COURT OF SHIRISH AGGARWAL, CIVIL JUDGE -1
CENTRAL DISTRICT, DELHI
SUIT NO: 54/10
UNIQUE CASE ID: 02401C0090692010
Mrs. Sudesh Sethi
W/o Late Mr. Sham Sunder Sethi,
R/o 12, St. Annes Close Cheshunt,
Herts, EN7 6JA England,
Presently at:
D-210, Ashok Vihar,
Phase-I, Delhi-110052.
...Plaintiff
VERSUS
Mr. Sohan Prasad
S/o Mr. Bindeshwari Prasad,
R/o 21/50, Ground Floor,
Old Rajinder Nagar,
New Delhi
.... Defendant
Date of Institution : 06.03.2010
Date of Pronouncing Judgment : 08.10.2013
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF RENT,
DAMAGES AND PERMANENT INJUNCTION
Judgment
1.The plaintiff has pleaded in the plaint that she is sole and absolute owner of first floor of property bearing no. 21/50, Old Rajinder Nagar, New Delhi (hereinafter referred to as "the suit property"). It is stated in the plaint that she acquired the same Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:1/28 2 from her late husband. It is further stated that the property was her husband's ancestral property. It is pleaded that the defendant is a tenant in the suit property who was inducted as such by way of an oral agreement. It is stated that earlier the rate of rent was Rs.4,100/- per month which was later increased to Rs.6,000/- per month. It is also stated that the defendant last paid rent in March, 2009 and is now in arrears of it in the sum of Rs.1,42,000/- which he has not paid despite repeated requests. It is stated that the plaintiff has terminated the tenancy by issuing a notice under Section 106, Transfer of Property Act, 1882 dated 25.01.2010. It is further pleaded that by this notice, tenancy was terminated with effect from 28.02.2010 and the defendant was called upon to pay the arrears of rent.
2. Since the defendant did not vacate the suit property despite termination of tenancy, the defendant is in unauthorized occupation of the same and is liable to pay mesne profits for use of the suit property for the period starting on 1.03.2010 till possession is delivered. It is stated that the premises is situated in prime location of the city and can easily fetch a monthly rent of Rs.25,000/-.
3. It has further been pleaded that the defendant also threatened to create third party interest in the suit property.
4. On the basis of these averments, the plaintiff filed the present suit for recovery of possession of the suit property, arrears Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:2/28 3 of rent of Rs.1,42,000/- calculated at the rate of Rs.6,000/- per month and damages at the rate of Rs.25,000/- per month for the period starting on 1.03.2010 till possession is handed over and permanent injunction restraining the defendant from creating third party interest in the suit property.
5. After service of summons, the defendant filed written statement. He stated in the written statement that the rate of rent is Rs.4,100/- per month excluding electricity charges and that he has paid complete amount of rent at this rate till January, 2010.
6. He has further stated that the plaintiff has not approached the court with clean hands and has concealed true facts from the court. It is stated that the plaintiff has concealed that the defendant had given a loan/security of Rs.4,00,000/- to the erstwhile landlord i.e. late father-in-law of the plaintiff, in the year 2004. It is further stated that this amount has not been repaid till date and the defendant reserves his right to seek recovery of the same.
7. It is further stated in the written statement that the owner of the suit property was the father-in-law of the plaintiff. After demise of the father-in-law, the suit property devolved upon his legal heirs, one of who was the husband of the plaintiff. It is stated that after demise of the husband of the plaintiff, the share of the husband in the suit property devolved upon his legal heirs, one of who is the plaintiff. As such, the plaintiff is not the sole owner of Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:3/28 4 the suit property. Therefore, she is not competent to terminate the tenancy and recover rent, damages and possession.
8. The defendant has denied having received legal notice dated 25.01.2010 by which the tenancy was purportedly terminated. The defendant has denied that the plaintiff is entitled to receive damages or mesne profits for the alleged illegal use and occupation of the property.
9. Replication was filed on behalf of the plaintiff. The plaintiff reiterated the correctness of the averments made in the plaint and denied the assertions of the defendant. The plaintiff denied that any loan/security was given by the defendant to her father-in-law. It is stated that the receipt filed by the defendant is forged and fabricated. It is pleaded that there was no question of the father-in-law to borrow money since he was a man of means and had sufficient properties. It is stated that the suit property stands mutated in the name of the plaintiff in the records of the Municipal Corporation of Delhi.
Issues
10. The following are the issues framed by the Ld. Predecessor of the Court by order dated 11.02.2011:
1. Whether the plaintiff is entitled to the relief as prayed for? OPP
2. Whether the present is entitled to any damages/mesne profits as prayed for? OPP
3. Whether the rate of rent is Rs.4100/- monthly? OPP
4. Whether Sh. Chaman Lal has to refund amount of Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:4/28 5 Rs.4,00,000/- taken as loan alongwith interest? OPD
5. Any other relief.
Evidence
11. To prove her case, the plaintiff examined herself as PW1 and Mr. Jatin Kohli as PW2. PW1 deposed the facts as mentioned in the plaint and replication and relied upon the following documents:
Ex.PW1/1 : Death certificate of Sh. Chaman
Lal
Ex.PW1/2 : Death certificate of Sh. Sham
Sunder
Ex.PW1/3 : Letter of Administration
Ex.PW1/4 : Copy of Passport
Ex.PW1/5 : Site Plan
Ex.PW1/6 : Legal notice
Ex.PW1/7 : Postal receipt
Ex.PW1/8 : UPC
Ex.PW1/9 : A D Card
12. During cross-examination of the plaintiff, she deposed that after the demise of her father-in-law, the suit property fell in the share of her husband by virtue of an oral family settlement.
13. PW2 deposed that plaintiff is his aunt and Late Mr. Sham Sunder Sethi was his uncle. He further stated that plaintiff is permanent resident of London and whenever plaintiff and Late Mr. Sham Sunder came to India, they used to reside with him. He further stated that the defendant was a tenant in respect of entire first floor of the suit property and he used to visit the tenanted premises alongwith his late uncle for the purpose of collecting rent, which was at the rate of Rs.6,000/- per month.
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14. He further testified that the defendant used to deposit rent in the bank account of his uncle whenever his uncle and aunt were out of India. He further testified that after the death of his uncle, the defendant deposited the rent with the bank of his uncle since March, 2009. Thereafter, no rent was paid by the defendant. He further testified that he visited the tenanted premises in the first week of January, 2010 with plaintiff and on demand of rent by plaintiff from the defendant, the defendant assured plaintiff that he shall pay the same within 10 days but he failed to pay the arrears of rent to plaintiff.
15. Plaintiff's evidence was closed on 13.12.2012.
16. To defend himself, the defendant examined himself as DW1. DW1 deposed the facts as mentioned in the Written Statement and relied upon the following:
Ex.DW1/1 : Receipt
Ex.DW1/2 : Bank Statements (colly)
17. During cross-examination of the defendant, he deposed that some part of the Rs.4,00,000/- that he gave to the father-in- law of the plaintiff was with him and the remaining he borrowed from his family and friends. He testified that he had not mentioned details of these Rs.4,00,000/- in his Income Tax Returns. Defendant's evidence was closed on 23.7.2013.
18. I have perused the record and have heard arguments.
Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:6/28 7 The suit has been filed within the period of limitation. This court has jurisdiction to try the present suit. The issue-wise findings are as under:
Issues No.1 and 2Whether the plaintiff is entitled to the relief as prayed for? OPP Whether the present is entitled to any damages/mesne profits as prayed for? OPP
19. Onus to prove these issues was upon the plaintiff. By the present suit, the plaintiff has sought the following reliefs:
a)recovery of possession of the suit property
b)arrears of rent of Rs.1,42,000/- calculated at the rate of Rs.6,000/- per month
c)damages at the rate of Rs.25,000/- per month for the period starting on 1.03.2010 till possession is handed over, and
d)permanent injunction restraining the defendant from creating third party interest in the suit property.
20. Before it is decided whether the plaintiff is entitled to any of the aforementioned reliefs, the objection to the maintainability of the suit raised by the defendant should be decided. It has been contended by the defendant that since all the legal heirs of the deceased father-in-law and deceased husband of the plaintiff have not been impleaded as plaintiffs in the present case, same is not maintainable. It is the case of the defendant that the suit property was owned by the father-in-law of the plaintiff. It is stated that after the demise of the father-in-law, the suit property devolved upon his legal heirs, one of who was the husband of the Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:7/28 8 plaintiff. It is stated that after demise of the husband of the plaintiff, the share of the husband in the suit property devolved upon his legal heirs, one of who is the plaintiff. As such, the plaintiff is not the sole owner of the suit property. Therefore, she is not competent to terminate the tenancy and recover rent, damages and possession.
21. On the other hand, it testified by the plaintiff that she is the sole owner of the suit property. During cross-examination of the plaintiff, she deposed that after the demise of her father-in-law, the entire suit property fell in the share of her husband by virtue of an oral family settlement. It is stated that the suit property now stands mutated in the name of the plaintiff in the records of the Municipal Corporation of Delhi. Therefore, she is the sole owner of the suit property.
22. I am of the opinion that even if the assertion of the plaintiff that she is the sole owner of the suit property is false and she is only a co-owner of the suit property, the suit is still maintainable.
23. The full bench of the Hon'ble Supreme Court has held the following in the case of Shri Ram Pasricha Vs. Jagannath and Ors. AIR 1976 SC 2335:
"25. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will, change only when partition takes place. It is, therefore, not possible Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:8/28 9 to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.
26...We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is."
24. A similar question arose in the case of Pal Singh Vs. Sunder Singh 29 (1986) DLT 385, in which the following was held by the Hon'ble High Court of Delhi:
"The law has been correctly noticed and followed by the learned Tribunal. I agree with its findings that in the present case the petition for eviction was maintainable without implicating Smt. Sham Kaur who is co-owner of the property. I may notice that in Mohan Lal Goela v. Shri Sri Krishan & Ors. MANU/DE/0028/1978 : AIR 1978 Delhi 92 , it was observed by Avadh Behari.J. that a co-owner was as much an owner of the property as any sole owner."
25. The following was held by the Hon'ble High Court of Delhi in the case of Kanhiya Lal Bansal Vs. Raj Nath Sharma and Ors. 14 (1978) DLT 69:
"(10) Now where a co-owner is managing the property on behalf of other co-owners, he has the implied consent to terminate the tenancy and evict the tenant. A full Bench of the Gujrat High Court in Nand Lal Girdhari Lal and another v. Gulamnabl Pamalbhai and others, held : "Where a co-owner is, by common consent of all co-
owners, entrusted with the management of the leased property he may give notice to quit in his own name and the notice to quit need not show on the face of it that he is acting as agent on behalf of the co-owners." It was also held :
"WHEN it is said that the notice to quit must be given by all co-owners, it is not necessary that it should be signed by all co-owners. It is sufficient if it is given by some one acting as agent on behalf of the co-owners. The agent may be one of the co-owners himself or he may be one of the co-owners himself or he may be a third person such as, for example a solicitor or an advocate. Such an agency may be expressed or Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:9/28 10 implied. So long as the agency is established, notice to quit given by the agent would be valid notice determining the tenancy."
Similar was the view taken by a Single Judge of Patna High Court in Indu Bhusan Base Choudhary v. Hari Bhajan Singh and others AIR1976 Pat 282 . The Supreme Court in Smt. Kanta Gael v. B. P. Pathak and others, [1977] 3 SCR 412 , after referring to its earlier decision in Shri Ram Pasricha [1977] 1 SCR 395 , that a co-owner is as much an owner of the entire property as any sole owner of the property is, held that where a co-owner functioned for all practical purposes as the landlord he was entitled to institute proceedings of eviction under the Delhi Rent Control Act against the tenant. (11) In the instant case, as already stated, it has been found that Raj Math Sharma was managing the property on behalf of all the co- owners which includes the guardian of the minor, and it cannot be said that he could not terminate the tenancy and take proceedings for the eviction of the tenant."
26. Even in the present case, after demise of the father-in- law and husband of the plaintiff, the plaintiff has been been managing the property. She has been collecting rent from the defendant and from other tenants in other parts of the same building. Since she resides abroad, her relative, i.e. PW-2, used to collect rent on her behalf. During the life time of the her husband, her husband's sister had collected rent, but on behalf of the plaintiff's husband. This indicates that the other legal heirs of the father-in-law and husband of the plaintiff are aware of the suit property. There has been no dispute between the legal heirs of the father-in-law and husband of the plaintiff concerning this suit property. This indicates that the plaintiff, even if not the sole owner, is managing the suit property with the tacit consent of legal heirs of the father-in-law and husband of the plaintiff.
Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:10/28 11
27. Also, even if there is any dispute on who is going to appropriate the proceeds of rent, that is a matter between legal heirs of the father-in-law and husband of the plaintiff. It is not even the case that the defendant has instituted an interpleader suit. Therefore, the objection of the defendant does not appear to be bonafide. On one hand the defendant is expressing apprehension in handing over possession of the suit property and paying rent to the plaintiff to the exclusion of other legal heirs of the father-in-law and husband of the plaintiff and on the other hand, the defendant has himself paid rent to the sister-in-law of the plaintiff, nephew of the plaintiff i.e. PW-2 and to the plaintiff. He even issued cheques for payment of rent in the name of one of the legal heirs, namely, Ms. Guddi Suri, who is sister-in-law of the plaintiff.
28. The defendant has relied upon the judgment of Ld. Civil Judge-04, Central District, Delhi passed in another case filed by the plaintiff bearing Suit No. 52/10 dated 18.04.2012 to substantiate that the present suit is not maintainable as co-owners of the suit property have not been impleaded as parties in the present case.
29. In view of the aforementioned decisions, I do not concur with the finding given in the judgment passed in Suit No. 52/10 dated 18.04.2012 that the suit suffers from mis-joinder of necessary parties and that the plaintiff was not competent to issue notice terminating the tenancy.
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30. In these facts and circumstances, the objection of the defendant is not tenable. The plaintiff was competent to terminate the tenancy. She is also competent to institute the present suit.
31. Now it shall be determined if the plaintiff is entitled to the aforementioned reliefs.
Recovery of Possession
32. The aforementioned prayer no. a has already been adjudicated on 16.02.2013 and need not be decided afresh.
Recovery of Arrears of Rent
33. With respect to the aforementioned prayer no.b, on 30.09.2013, a statement was made on behalf of the plaintiff that she wants to confine this prayer only for recovery of arrears of rent of Rs.45,100/- calculated at the rate of Rs.4,100/- per month for the period starting on 1.04.2009 till termination of tenancy i.e. 28.02.2010.
34. It has been deposed by the plaintiff that till the institution of the suit, the defendant had last paid rent in March, 2009. The defendant has denied the same and has stated that he has paid rent in cash till January, 2010.
35. In the given circumstances, it is for the defendant to prove that he has paid rent. Other than an oral testimony of the defendant that he has paid rent during this period, there is no other Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:12/28 13 proof of the same. During cross-examination, the defendant has admitted that there is no documentary proof with him to substantiate that he paid rent to the plaintiff or anyone else. There is no receipt of payment which has been brought on record. There is no bank record to substantiate that such payments were indeed made. Details of payments have not been mentioned. The defendant has not stated as to on which date, to whom and how much payment was made as rent. There in only a bald averment that rent was paid for this period. In view of Order 8 Rule 4, Code of Civil Procedure, 1908, the denial of the defendant that rent has not been paid is no denial in the eyes of law. The provision is as under:
"Where a defendant denies an allegation of fact, in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it alongwith those circumstances."
36. The plaintiff and PW-2 have deposed that the defendant has not paid rent of the period 1.04.2009 till termination of tenancy i.e. 28.02.2010. If the defendant had paid rent to them during this period, he should have cross-examined them on this point. He did not do so. The defendant did not put any question to the witnesses to suggest that payment of a particular sum was made on a particular day to the witness. It appears that the defendant did not propose to contradict them in this regard.
Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:13/28 14
37. Failure to cross-examine implies acceptance of correctness of testimony of the witnesses. The defendant has also not adduced any evidence to rebut or controvert the testimony of the witnesses. Nothing has been brought on the record that could discredit the said witnesses or impeach their testimony.
38. Therefore, it shall be presumed that the defendant did not make the payment of rent during the period 1.04.2009 till 28.02.2010.
39. The monthly rate of rent was in dispute. But on 30.09.2013, a statement was made on behalf of the plaintiff that she wants to confine her prayer for recovery of arrears of rent calculated at the rate of Rs.4,100/- per month. The defendant has admitted that Rs.4,100/- per month is the rate of rent.
In these circumstances, it is held that the plaintiff is entitled to recovery of Rs.45,100/- from the defendant as arrears of rent, calculated at the rate of Rs.4,100/- per month for the period 01.4.2009 to 28.02.2010.
Recovery of damages/mesne profits
40. Now it shall be decided if the plaintiff is entitled to the aforementioned prayer no.c, by which she seeks to recover damages at the rate of Rs.25,000/- per month for the period starting on 1.03.2010 till possession is handed over.
41. The defendant has disputed the rate of rent and the Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:14/28 15 assertions of the plaintiff that he had been defaulting in payment of rent. None of these contentions of the defendant, even if accepted to be correct, affected the entitlement of the plaintiff to recover possession since the plaintiff was not seeking recovery of possession on the basis of breach of conditions of tenancy but on the basis of notice terminating the tenancy. Hence, the aforesaid contentions of the defendant are of no relevance to the present issue and are not required to be determined herein. The only contention of the defendant that merits consideration is whether the notice dated 25.01.2010 Ex. PW1/6 was served upon the defendant and if so, the effect thereof.
42. As is evident from the pleadings, it is not disputed between the parties that tenancy was oral and that the property was leased to the defendant for his residence. Such oral tenancy is deemed to be a month-to-month tenancy terminable with fifteen days' notice, as laid down in Section 106 of Transfer of Property Act, 1882. This position of law is clearly borne out from the decision of Hon'ble High Court of Delhi in the case of Deenar Builders Ltd. v. M/s. Khoday Distilleries Ltd. AIR 2000 Del 147. Section 106 of the Transfer of Property Act reads as under :
"In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:15/28 16 behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property".
43. According to the plaintiff, the tenancy has been terminated by service of notice in conformity with the aforementioned provision. In support of this contention, the plaintiff has placed reliance on the testimony of PW-1 i.e. the plaintiff herself. The plaintiff PW-1 has stated in the affidavit Ex. PW1/A that she had sent the aforementioned legal notice Ex. PW1/6 which was duly served upon the defendant and which terminated the tenancy. This assertion of PW-1 is corroborated by the legal notice Ex. PW1/6 and its postal receipts Ex. PW1/7, Ex. PW1/8 and Ex. PW1/9. The genuineness of the receipts Ex. PW1/7, Ex. PW1/8 and Ex. PW1/9 has not been questioned by the defendant in the cross-examination of PW-1 or in defence evidence. Nothing has been brought on record which could cast doubt on the genuineness of the receipts. Hence the said receipts can be relied upon. From the receipts, it is apparent that the legal notice has been sent by registered post and UPC. The address at which the notice has been sent is that of the suit property where the defendant was admittedly residing. It is also not the case of the defendant that he was not residing at the said address when the legal notice was dispatched. From the testimony of PW-1, duly corroborated by the legal notice and postal receipts, it is clear that the notice had been sent at the correct address. The defendant has failed to disclose any reason which could have prevented the service of notice upon him. Under Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:16/28 17 Section 114 of Evidence Act, the existence of facts which are likely to have happened in the ordinary course of human conduct and business may be presumed. Particular reference may be made to illustration (f) of Section 114. By common course of business, the legal notice would have been received by the defendant. Under Section 27 of the General Clauses Act, 1897 also, the service of legal notice upon the defendant may be presumed.
44. As held in the case of Madan Lal Sethi Vs. Amar Singh Bhalla, 1980 (2) AIRCJ 543, a mere bald denial by the defendant of service of notice is not sufficient to rebut the presumption under Section 114 of illustration (f) of the Evidence Act. Some other evidence to show the interruption of post has to be adduced by the tenant.
45. On this point, the Hon'ble High Court of Delhi has, in the case of Vinod Khanna v. Bakshi Sachdev (Deceased) through LRs, AIR 1996 Delhi 32 noted thus:
"From Ex. P-1 to P-11 it is proved and established that the aforesaid notice dated 12.12.1988 (Ex. P-1) terminating the tenancy was dispatched to defendant No. 2 at its registered office and also to the appellant No. 1 and 3 at their addresses at 5, Golf Links, where they were admittedly residing, as is disclosed from the evidence of DW 1/appellant No. 1. In view of the despatch of the said notices to the appellants/defendants individually at their proper addresses now the question arises as to whether a presumption of service of notice could be drawn in favour of the plaintiff or not. The basic law of presumption of service of notice is permitted under the provisions of Section 27 of the General Clauses Act and also under the provisions of Section 114 of the Evidence Act. The earliest case on the issue of drawing of presumption of service under such circumstances is probably the case of Hari Har Bannerjee v. Ram Shashi Roy, AIR 1918 Privy Council 102, wherein it was held that if a letter properly Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:17/28 18 directed containing a notice to quit, is proved to have been put in the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender had taken the precaution to register. In the case of M/s. Madan v. Wazir J.V. Chand the Apex Court had held that all that a landlord can do is to comply with the provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and that once the same is done and a letter is delivered to the post office, he has no control over it and that it can then be presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. The above being the settled law and in the present case it having been proved by the plaintiffs that a notice as envisaged under Section 106 of the Transfer of Property Act having been issued by the plaintiffs to the concerned defendants at their residential address in accordance with law, it can well be presumed under the aforesaid provisions - statutory as well as case laws - that the said notices have been duly served on the said defendants and therefore, in that view of the letter we do not find any infirmity to interfere with the findings of the learned trial court that the notice terminating the tenancy was duly, properly and validly served on the defendants."
46. Reference may also be made to the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007 (2) DCR 321 SC in which the Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business".
47. It can therefore be safely presumed that the said legal notice was duly served upon the defendant.
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48. The legal notice Ex. PW1/6 states that the defendant shall vacate the suit property by 28.02.2010. The notice was dispatched on 25.01.2010 as evident from postal receipts Ex. PW1/7, Ex. PW1/8 and Ex. PW1/9. Having regard to the ordinary course of business, it is reasonable to assume that the notice (which was dispatched from and was destined for Delhi) reached the defendant on or before 13.02.2010. The notice clearly afforded fifteen days' time to the defendant to vacate the suit property. The notice satisfies the requirement of Section 106 of Transfer of Property Act, 1882. By way of the said legal notice, tenancy of the defendant stood terminated, in keeping with Section 111(h) of the Transfer of Property Act, 1882. The defendant therefore became liable to hand over the vacant possession of the suit property to the plaintiff 28.02.2010. Since this was admittedly not done and the defendant was in unauthorized occupation of the suit property, the defendant must pay charges for use of property for the period starting on 1.03.2010 till possession is handed over. This inference is strengthened by the decision of Hon'ble Supreme Court in the case of Shyam Charan v. Sheoji Bhai and another AIR 1977 SC 2270, in which it was held that the occupant of a premises is liable to pay mesne profits/damages with effect from the day on which tenancy was terminated.
49. The quantum of rent/mesne profits is next required to be ascertained. Mesne profits has been defined by Section 2(12) of Code of Civil Procedure as profits which the wrongful occupant actually received or might have, with ordinary diligence, received.
Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:19/28 20 It has been consistently laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent.
50. The plaintiff has stated in the plaint that the suit property could easily fetch rent of Rs.25,000/- per month. This assertion is made in paragraph no. 16 of the plaint. With respect to this paragraph, the defendant has stated in his written statement that the content of this paragraph are false, vague and denied. It is further stated that the submissions made above may be referred to. However, the entire written statement has no reference of the market rate of rent of the suit property. In response to the paragraph no. 15 of the Plaint, all that is stated is that the defendant is not liable to pay mesne profits. However, the quantum of market rate of rent has not been mentioned. Order 8 Rules 3, 4 and 5 of CPC prescribe that denials in the written statement should be specific and not evasive. If the defendant felt that Rs.25,000/- is not the market rate of rent, he ought to have brought the correct market rate of rent on record. The denial of the defendant with respect to the market rate of rent is vague and is therefore, no denial in the eyes of law.
51. The plaintiff has led evidence to support his plea that the market rate of rent was Rs.25,000/- per month. She has examined herself as PW-1. PW-1 has stated in paragraph no. 16 of her affidavit Ex. PW1/A that the suit property can easily fetch rent of Rs.25,000/- per month. She has further testified that the suit Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:20/28 21 property is situated in the prime location of the city. PW-1 was cross-examined by the defendant. However the defendant did not put any suggestion to the plaintiff as to whether Rs.25,000/- per month reflects the fair market rate of rent. The plaintiff has not been questioned about the correctness of the said rate of rent. The testimony of the plaintiff/PW-1 as to the rate of rent has remained unchallenged during cross-examination. Nothing could be elicited during cross-examination which could cast doubt on the assertion of the plaintiff as to the fair market rate of rent. Failure to cross- examine the witness implies acceptance of correctness of his testimony on that matter. The defendant is therefore deemed to have accepted that Rs.25,000/- per month is the market rate of rent.
52. Moreover, the same liability of the defendant was reiterated in the legal notice Ex. PW1/6. The legal notice has not been replied to despite having being served upon the defendant, as noted above. Failure to reply to the notice also indicates acceptance of the correctness of its contents.
53. The defendant consciously continued to occupy the suit property despite knowing that on failure to handover possession, he would be liable to pay damages at the rate of Rs.25,000/- per month as stipulated in the above notice. Since the defendant chose to overstay despite being aware of the consequential damages of which he had been put to notice, I find no ground to refuse to grant damages at the said rate.
Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:21/28 22
54. In the case of P.L. Kapur Vs. Jia Rani, AIR 1973 Delhi 186, the Hon'ble High Court of Delhi held that the claim for damages can be founded on legal notice.
55. Also, this court can take judicial notice of the general rise in rental rates in Delhi. Reference may be made to the case of Bakshi Sachdev (D) by L.Rs. v. Concord 1993 RLR 563 and Vinod Khanna v. Bakshi Sachdev AIR 1996 Delhi 32 wherein Hon'ble High Court of Delhi held that the damages and mesne profits can be granted at a higher rate than the agreed rate of rent after the expiry of the tenancy and after taking judicial notice of the phenomenal rise in rents in Delhi. At the same time, since there is adequate material to indicate the market rate of rent, mesne profits/damages need not be restricted to the agreed rate of rent, particularly when there is nothing to suggest that the contractual rate of rent was in sync with the market rate.
56. Having regard to the testimony of witnesses, the location and extent of the suit property, it can safely be inferred that the fair market rate of rent would be Rs.25,000/- per month. Admittedly, no charges have been received by the plaintiff for usage of the suit property by the defendant after termination of tenancy. The plaintiff is therefore entitled to recovery of mesne profits/damages at the said rate.
57. For the aforesaid reasons, the plaintiff is entitled to recover damages from the defendant at the rate of Rs.25,000/- per Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:22/28 23 month from 1.03.2010 till the date of recovery of possession. However, for the relief of damages, the plaintiff can be called upon to pay deficient court fee.
Permanent Injunction
58. Now it shall be examined if the plaintiff is entitled to the aforementioned prayer no. d, by which she seeks to restrain the defendant and his family members, attorneys and successors from creating third party interest in the suit property.
59. According to the plaintiff, he had inducted the defendant as his tenant and the defendant is trying to create third party interest in the suit property. This has been reiterated by the plaintiff in her affidavit Ex. PW1/A.
60. The defendant has, in the written statement, admitted that he is a tenant in the suit property and that the plaintiff is the landlord. This has been maintained by the defendant in his defence evidence i.e. in his own testimony.
61. It is the admitted case of the parties that the plaintiff is the landlord and the defendant is tenant in the suit property. As such, the defendant has no right to create third party interest in the suit property. He can, and is bound to, surrender possession to the landlord alone. This obligation of the defendant can be enforced by the plaintiff by injunction. The plaintiff is therefore entitled to permanent injunction restraining the defendant and his Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:23/28 24 representatives from creating third party interest in the suit property. These issues are decided in favour of the plaintiff and against the defendant, in part.
Issue No.3 Whether the rate of rent is Rs.4,100/- monthly? OPP
62. The onus to prove this issue was upon the plaintiff. The case of the defendant is that the rate of rent is Rs.4,100/- per month. In the plaint, it has been stated that earlier the rate of rent was Rs.4,100/- per month which was later increased to Rs.6,000/- per month. The plaintiff therefore sought recovery of arrears of rent at this rate. However, on 30.09.2013, a statement was made on behalf of the plaintiff that the plaintiff wants to confine her claim towards arrears of rent only at the rate of Rs.4,100/- per month. On the same day, this court ordered that the prayer for recovery of arrears of rent shall be read as such.
63. Since the plaintiff has confined her claim of arrears of rent to Rs.4,100/- per month, it need not be decided if the rate of rent was Rs.4,100/- per month or Rs.6,000/- per month. In these circumstances, this issue need not be decided.
Issue No.4 Whether Sh. Chaman Lal has to refund amount of Rs.4,00,000/- taken as loan alongwith interest? OPD
64. The onus to prove this issue was upon the defendant. It Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:24/28 25 has been deposed by the defendant that he had paid Rs.4,00,000/- to the father-in-law of the plaintiff as loan/security. He has relied upon a Receipt Ex.DW1/1 allegedly issued by the father-in-law to substantiate the same. The plaintiff has testified that the receipt is forged and fabricated. She has further testified that her father-in- law had not taken any loan/security from the defendant. It is stated that the father-in-law was a man of means and therefore, question of his taking loan/security from the defendant does not arise.
65. However, the defendant has failed to prove that he has made the said payment. This conclusion is drawn on account of the following reasons :
a)The source of the said funds has not been satisfactorily explained by the defendant. Merely saying that some part of the amount was with the defendant and the remaining was taken from his family and friends does not suffice. The defendant ought to have led evidence to prove the same. The defendant has admitted during his cross-examination that he has not even shown the transaction pertaining to Rs. 4,00,000/- in his Income Tax Returns. He has further admitted that his taking loan from his family and friends has also not been stated in his Income Tax Returns.
b)According to the defendant, he had been inducted as a tenant in the year 1999. As per him, the father-in-law of the plaintiff took the aforementioned amount of Rs. 4,00,000 as security on 1.10.2004. It seems far fetched that the security amount is paid around five years subsequent to the inception of tenancy. Admittedly, the oral rent agreement also did not prescribe that any security amount is to be paid.
c)The defendant admittedly never took any steps for recovery of the aforementioned amount allegedly given to the late father-in-law of the plaintiff. The defendant has not issued any letter or notice to the plaintiff or other legal heirs of late Mr. C.L. Sethi for recovery of the aforesaid sum. The defendant is aware that the plaintiff is trying to evict him from the suit property. Yet, despite a dispute having arisen, he has not sent any notice seeking refund of the said security. It is unlikely that a person residing in a tenanted property Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:25/28 26 does not take any steps to recover back an amount of Rs. 4,00,000 and interest.
d)The person who has purportedly signed the receipt as a witness has not been called in the witness box by the defendant to substantiate that he indeed gave the amount to the late father-in-
law of the plaintiff.
66. For want of adequate explanation, the defendant has failed to overwhelmingly prove that he had paid the said sum of loan/security. He has failed to attain the standard of preponderance of probability and has not been able to outweigh the denial of the plaintiff/PW-1 of the receipt of the said sum of security.
67. Even otherwise, it is immaterial whether the defendant had indeed given the amount to the father-in-law of the plaintiff or not. This is so because the alleged agreement which is in the form of the receipt proved as Ex.DW1/1 does not prescribe that the return of the alleged security was a condition precedent to vacating the suit property or payment of rent. The defendant has also not pleaded that the property was mortgaged. All that is stated in the alleged agreement is that the father-in-law of the plaintiff shall return the amount when suit property is vacated. The alleged right of the defendant to recover the amount from the legal heirs of the father-in-law of the plaintiff accrued on the day when he vacated the suit property. If the defendant has not received back the amount, it gives rise to a separate cause of action for which he may initiate legal proceedings. In fact, the defendant has himself stated in the written statement that he reserves his right to do so.
Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:26/28 27 In the present case, the defendant has not filed a counter-claim or even pleaded set off. He has not even paid court fees if he is seeking to recover the amount allegedly lent and interest accrued on it. In similar circumstances, the Hon'ble High Court of Delhi in the case of M/s Sonia and Co. (Pvt.) Ltd. Vs M/s Saboo Cylinders Pvt. Ltd. CS(OS) 626/2004 decided on 20.01.2009 has held the following:
"6. The defendant No.1 has thus sought to set off its claims for Rs.20 lac against the plaintiff and the security deposit of Rs.3 lac against the rent. However, neither any court fees on such plea of set off was paid nor as aforesaid did the defendants appear before the court and prove the said claim. The said claim of the defendants is not entitled to be believed."
68. In these circumstances, this issue is decided against the defendant and in favour of the plaintiff.
Issue No.5 -Relief
69. In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiff and against the defendant.
70. A decree for recovery of a sum of Rs.45,100/- as arrears of rent is passed in favour of plaintiff and against the defendant. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 9% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 9% per annum from the date of decree till Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:27/28 28 realization.
71. A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff mesne profits/damages computed at the rate of Rs.25,000/- per month from, and including, the month of March, 2010 till the date on which vacant possession is handed over by the defendant to the plaintiff. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 9% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 9% per annum from the date of decree till realization. This direction shall be executable only after payment of appropriate court fee thereon after setting off the court fee paid on the aforesaid sum by the plaintiff at the time of institution of the plaint.
72. A further decree of permanent injunction is passed in favour of the plaintiff restraining the defendant, his family members, attorneys and successors from creating third party interest in the aforementioned suit property. The plaintiff is entitled to recover costs of the suit from the defendant.
Decree sheet shall be prepared accordingly.
File be consigned to Record Room.
(ANNOUNCED IN THE OPEN COURT (SHIRISH AGGARWAL) ON 08.10.2013) CIVIL JUDGE-1 CENTRAL DISTRICT DELHI Sudesh Sethi v. Sohan Prasad Suit No.54/10 Page No:28/28