Delhi District Court
This Suit For Recovery Of Rent vs Singh Thereafter Surrendered His ... on 12 December, 2007
IN THE COURT OF SH. SUNIL KUMAR AGGARWAL
ADDL. DISTRICT JUDGE, DELHI
Suit No. 334/07
Praveen Kumar
S/o. Late Sh. Sita Ram Vaish
R/o. M-92, Connaught Place,
New Delhi- 110 001
Versus
1. Sh. Rajesh Punchhi
S/o. Sh. Tusli Ram
R/o. RZ-3, Bhawani Kunj,
Vasant Kunj, New Delhi -110 070
2nd Address: D-1/1060, Vasant Kunj,
New Delhi - 110 070
2.Mohinder Wig
S/o. Sh. Raj Kumar Wig
206, BMC House,
N-1, Middle Circle,
Connaught Place
New Delhi -110 001
Plaint presented on :31.05.02
JUDGEMENT
1. This suit for recovery of rent , mesne profit, occupation charges and causing substantial damage to flat No. 205 A, AVG Bhawan , M-3, Middle Circle , Connaught Place, New Delhi by bringing about structural changes / alteration , against the Defendant claiming himself to be the owner / landlord of flat, Defendant No. 1 to be its erstwhile tenant and Defendant No. 2 to be the erstwhile unauthorized sub-tenant. It is avered that Defendant No. 1 and Sh. Preetipal Singh were joint tenants of suit flat. They had failed to take or tender rent thereof from 01.06.83.
..2..
Plaintiff therefore, had filed eviction petition U/s. 14 (1)(a) of Delhi Rent Control Act. Said petition was disposed off after giving benefit of section 14 (2) of DRC Act to the tenants who had cleared arrears of rent on 31.10.85. Sh. Preetipal Singh thereafter surrendered his tenancy rights in favour of Defendant No. 1 who became the sole tenant. Defendant No. 1 again defaulted in making payment of rent with effect from 01.09.88. Plaintiff therefore, had filed another eviction petition U/s. 14 (2) and 14 (1) (b) of DRC Act . The same was allowed by Sh. Pradeep Chaddha then Ld. ARC on 24.01.00 on both the grounds. The appeal of Defendant No. 1 against the said order was dismissed by Sh. G P Thareja Ld. RCT on 06.05.02.
2. The original rate of rent of suit flat was Rs. 1400/- per month which on gradual enhancements had become Rs. 1864/- per month. Defendant No. 1 ceased to be a tenant under the Plaintiff from 24.01.00 when eviction order was passed against him and became liable to pay mesne profits for use and occupation of the flat at the prevalent market rate which is Rs. 43.75 per sq ft. Defendant No. 1 had lastly deposited rent at the rate of 1864/- per month in petition for deposit of rent up to 31.07.98. He is liable to pay ..3..
the same from 01.08.98,. the Plaintiff however restricted his claim from May 1999 to January, 2000 when eviction orders were passed against Defendant No. 1 i.e Rs. 16,776/-.
3. Plaintiff had obtained the physical possession of suit flat in execution of eviction order , through Court bailiff on 09.05.02. The Defendants remained liable to pay mesne profits from February, 2000 to April 2002 at the rate of Rs. 14,000/- per month i.e Rs. 3,78,000/- in total. Although Plaintiff is entitled to recover these charges from 25.01.00 till 08.05.02 but to make the calculations easy, charges from February, 2000 to April 2002 only have been claimed.
4. Defendants have caused substantial damage to the suit flat. They have remove the original windows and replaced them with other windows. The wall below the window was removed where files , books earlier used to be kept. With the extension of windows, the portion thereunder cannot be used for storage. Defendants have also removed main wooden door as well as WC seat from the toilet and convert the toilet into pantry and a store room. Plaintiff detected all these changes after taking over possession of the flat through Court bailiff. It was brought about ..4..
Defendants during operation of Court injunction orders. By the structural changes and substantial damage to the property Defendants have caused a loss of Rs. 2,50,000/- to the Plaintiff. Plaintiff reserved his right to file proceedings for recovery of electricity, maintenance and other charges in respect of the suit flat after ascertaining the same. He had served demand notice dated 23.05.02 on the Defendant which they failed to comply with. Hence the suit for recovery of Rs. 6,44,776/- with interest at the rate of 24 % per annum.
5. In their joint written statement Defendants raised preliminary objections that suit is barred U/s. 50 of DRC Act besides the provisions of order 2 Rule 2 CPC and order 7 Rule 11 CPC. It is contended that since the appeal against the order of eviction is pending in the Hon'ble High Court of Delhi, possession of flat has been taken by Plaintiff unlawfully as relationship of landlord and tenant continues between the parties. The Plaintiff did not take the ground of damage allegedly caused to the property before the rent controller. He is not entitled to the relief in this suit. While denying that Defendants have acted in violation of Court orders, it is resented that Plaintiff has let out the suit flat to M/s. Imperial World Travels during pendency of appeal of the Defendants.
..5..
On merits it is alleged that only with the intention to dispossess the Defendant from the tenancy premises, false complaints and various proceedings were filed by the Plaintiff. It has been denied that Defendant No. 2 was unauthorized sub-tenant of the suit flat. According to them the rent was being regularly tendered to the Plaintiff who would refuse to accept the same. There was no question of Defendant availing the benefit of section 14 (2) of DRC Act when orders under section 15 (1) had not been passed against him. It is contended that the Plaintiff has fabricated a false story to implicate the Defendant and his action was motivated with malafide intentions. Defendants have denied the liability to pay mesne profits or that the prevalent market rate is Rs. 43.75 per sq ft. It is contended that Defendant is confident of his success in appeal against the eviction order and that he would be restored the possession of flat. The liability to pay arrears of rent and occupation charges , has been refuted.
6. According to Defendants the Plaintiff used to visit and inspect the property quite frequently and whatever changes therein were carried out had his consent. Plaintiff having relinquished his rights to rake up the question under ..6..
DRC Act, is precluded from raising it in these proceedings. The Plaintiff immediately on disposal of appeal by Ld. Rent Control Tribunal on 06.05.02, without sending any notice of execution to the Defendant, got over the suit flat, ransacked the furniture and office articles of Defendant and damage the property in collusion with bailiff. It has been denied that Defendant has caused any structural changes or damage and therefore, he owe no liability to pay therefore. It is contended that Plaintiff has no cause of action for filing the suit which is liable to be dismissed with cost.
7. In replication Plaintiff has reiterated the contents of plaint and refuted those of the Written statement. It has been admitted that suit flat has already be re-let and that the Defendant had become trespasser in it after 24.01.00. The second appeal of the Defendant is not maintainable. It is denied that the Plaintiff used to refuse receive rent from the Defendant. The allegation of ransacking of premises at the time of taking possession has been controverted. It is stated that both the Defendants have surrendered the physical possession of the flat to a third person who was in possession and control thereof. There was , therefore, no question of damage to the property and records of Defendants.
..7..
8. On the pleading of parties following issues were framed on 26.08.02:
1. Whether the suit is barred under section 50 of Delhi Rent Control Act ? OPD
2. Whether there is no cause of action for filing of the present suit against the Defendants? OPD
3. Whether the suit is barred by order 2 of CPC 1908 as so alleged in Preliminary objection No. D of the W.S? OPD
4. Whether the Plaintiff is entitled for the arrears of rentals and occupational charges, as so prayed in the plaint?
OPP
5. Whether the Plaintiff is entitled for damages, as so prayed in the plaint? OPP
6. Whether the Plaintiff is entitled to interest, if so then at what rate and to what extent? OPP
7. Relief.
9. On 25.09.02 on behalf of Defendant pay orders for Rs. 81,576/- and Rs. 440/- representing the admitted rent were delivered to the Plaintiff who had accepted the same without prejudice to his rights.
10. In support of his case Plaintiff examined himself as ..8..
PW 1 and proved copy of order dated 03.10.85 passed U/s. 15 (1) of DRC Act as Ex. PW 1/1, eviction order dated 24.01.00 Ex. PW 1/2, order dated 06.05.02 of Ld. RCT Ex. PW 1/3 , orders dated 28.01.00 of the Court in proceedings U/s. 27 of DRC Act Ex. PW 1/4, Legal notices Ex. PW 1/5 and Ex. PW 1/6, postal receipts Ex. PW 1/7 to Ex. PW 1/12, letters dated 08.08.02 to the postal authority Ex. PW 1/13 to Ex. PW 1/15 and letters dated 09.08.02 Ex. PW 1/16 to Ex. PW 1/18, certificates issued by postal authority Ex. PW 1/19 and Ex. PW 1/20, letter written by Plaintiff Ex. PW 1/21 , certificate issued by Sh. Niketan Anand Ex. PW 1/22 and certified copy of judgment passed in civil suit between the parties Ex. PW 1/D1. Sh. B K Chauhan , Architect proved his inspection report Ex. PW 2/1 and rough site plan of the suit flat Ex. PW 2/D-1. Plaintiff closed his evidence on 17.03.03. Further proceedings of the case remained in limbo for about one year as the Defendant had filed a suit for recovery of damages against the Plaintiff and sought transfer of two cases to one Court as also on account of interim orders passed in the said other case. A number of opportunities thereafter were afforded to Defendants for leading evidence. Defendant No. 1 filed his affidavit and was partly cross examined. His further examination was deferred as ..9..
parties intended to negotiate for compromise. Neither they could amicably settled the matter nor the Defendants returned for further evidence. In fact after recusal of this Counsel from the proceedings, none followed up the matter resulting into ex-parte proceedings against them on 21.11.07.
11. I have heard Ld. Counsel for the Plaintiff and carefully perused the file. None has turned up so far to assist on behalf of the Defendants.
12. My issuewise findings are recorded hereinbelow : ISSUE No. 1
13. Contending that the relationship of landlord and tenants subsets between the parties because second appeal against order dated 06.05.02 of Ld.. Rent Control Tribunal , filed by the Defendant is pending in the Hon'ble High Court, the shield of section 50 of Delhi Rent Control Act was raised . The averment however does not hold water. The relationship in respect of lease of suit premises between the parties came to an end on passing of eviction order dated 24.01.00 against the Defendant. Defendant was not granted stay against the operation of said order. It has been held in Roshan Lal V Devraj Sawhney, 1985 Delhi High Court ..10..
Digest, item No. 64 that even if appeal is an extension of suit, res judicata applies if the suit has been decided on merits and the matter is pending in appeal.
14. Till date the fate of appeal has not been notified to this Court. It is therefore, held that the bar of section 50 of Delhi Rent Control Act, 1958 has been wrongly invoked by the Defendant . Issue is decided in favour of the Plaintiff and against the Defendant.
ISSUE No. 2
15. After obtaining physical possession of the suit premises from its occupant in execution of eviction order passed in favour of the Plaintiff, he had every right to realize the arrears of rent as also claim use and occupation charges for the same for the period subsequent to the passing of eviction order against the Defendant on the principle that one cannot be allowed to occupy the property of other without paying / compensating the owner/ landlord. Since Plaintiff claims to have detected substantial damages having been caused to his property by the erstwhile tenant, he sought compensation for the same within the period of limitation. Plaintiff thus had the cause of ..11..
action for filing the suit . The pendency of second appeal of the Defendant in the Hon'ble High Court of Delhi is no bar to the suit. Defendants thus are held to have failed in discharging the onus to prove the issue . It is decided in favouar of the Plaintiff and against the Defendants. ISSUE No. 3
16. It has been alleged that Plaintiff had relinquished his claim for the reliefs sought in this suit in eviction petitions therefore, the suit is hit by the provisions of order 2 Rule 2 CPC . Defendants however, chose not to place the documents from where relinquishment of identical relief by the Plaintiff can be discerned. The matter of recovery of rent and mesne profits did not fall within the jurisdiction of quasi judicial authority under Delhi Rent Control Act where the relief of eviction only could have been sought. Just because the Plaintiff had not sought eviction of Defendants from the suit flat on the ground of causing substantial damage to it, he is not precluded from filing and pursuing the suit for recovery of monetary damages against the erstwhile tenant particularly when he claims to have become aware of the extent of damage only after taking possession of the flat on 09.05.02. The Rent Controller even ..12..
otherwise could not have granted the relief claimed by the Plaintiff in this suit. The preliminary objection of Defendants thus is misconceived and devoid of merits. It is repelled . The issue therefore, is decided in favour of the Plaintiff and against the Defendant.
ISSUE No. 4
17. Since Defendant No. 1 did not turn up offering himself for remaining cross examination after 01.12.06, his part testimony contained in his affidavit cannot be read in his favour as the same remained to be tested in the touch stone of cross examination.
18.Both the PWs however were cross examined on behalf of the Defendants. No question whatsoever was put to Plaintiff , who had appeared as PW 1, in cross examination disputing the arrears of rent, regarding liability to pay damages/mesne profits for use and occupation of suit flat from February, 2000 to 09.05.02 and the rate of damages prevalent in the market at the time of passing eviction order against the Defendant. Defendants thus are deemed to have admitted the version of Plaintiff on all those aspects. Reliance in this respect may be palced upon the ratio of ..13..
Rajender Prasad V Darshana Devi , 2001 VI AD SC 272 holding that there is an age old rule that if you dispute the correctness of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue otherwise you cannot impeach his credit.
19. Plaintiff has claimed the arrears of rent from 01.05.99 to January, 2000 at the rate of Rs. 1,864/- per month at which rent was lastly deposited by Defendant No. 1 U/s. 27 of DRC Act per Ex. PW 1/4. By the time this suit came to be file on 31.05.02, rent for the month of May,1999 had become barred by time. Therefore, Plaintiff is held entitled to realize rent at the rate of Rs. 1,864/- per month from the Defendants for period 01.06.99 to 31.01.2000 ie Rs. 14,912/-.
20. Plaintiff became entitled to recover charges for use and occupation of suit flat from the Defendants at the prevalent market rates in the area after 24.01.2000. Although Defendants did not dispute the contention of Plaintiff that properties in the vicinity of suit flat were being let out at the rate of Rs. 43.75 per sq ft. in or around January, 2000. Although the charges calculated at this rate came to Rs.
..14 ..
14,000/- per month for the suit flat yet it was let out to M/s. Imperial World Travels after obtaining its possession from Defendants in May, 2002 at the rate of Rs. 10,001/- per month as finds mention in communicate Ex. PW 1/21 and Ex. PW 1/22 . No justification for letting out the flat to M/s Imperial World Travels at rate lesser than the prevalent market rate has been furnished by the Plaintiff. Legitimately therefore, it will be taken that the suit flat was let out at the prevailing market rate of the second half of 2002 and that it was lesser than Rs. 43.75 per sq ft.
21.It is a matter of common knowledge that rate of rents in commercial areas are gradually on rise. Going by this feature it must be taken that the prevalent rates of rent of suit flat in the year 2000 were lower than the rate at which it was actually re-let in 2002. Facts and circumstances of the case would justify the fixation of such rate for the suit flat at Rs. 7,000/- per month. Plaintiff is entitled to recover the use and occupation charges at this rate from the Defendant for period February, 2000 to April, 2002 ie Rs. 1,89,000/-. It may be mentioned that in order to make calculations easy Plaintiff has quite justifiably claimed the usage charges from 25.01.2000 to 31.01.2000 only at the rate of Rs. 1,864/- per ..15..
month and has foregone the claim for such charges for period 01.05.02 to 09.05.02. Issue is thus partly decided in favour of the Plaintiff.
ISSUE No. 5
22. A sum of Rs. 2.5 lacs on the basis of report Ex. PW 2/1 has been claimed by Plaintiff as reimbursement of structural damages caused to his flat by the Defendants. I have just decided the cross suit bearing No. 508 A/07 filed by the Defendant No. 1 against the Plaintiff. Said suit was filed for recovery of damage caused to the properties of Defendant No. 1 by the Plaintiff at the time of taking possession of suit flat and subsequent thereto. He also had relied upon inspection report of an Architect. It is ironical to observe that reports at variance have emanated from the office of same Architect B K Chauhan and Associates one favouring the Plaintiff and other favouring the Defendant No.
1. Naturally it clouds the sanctity of report Ex. PW 2/1 to a great extent.
23. The report of Architect is silent as to whether the suit flat had been kept in the state of regular repairs and whitewash / paint. He has also not given concession for ..16..
normal wear and tear in the flat by the user of Defendants for a period of 10 years. The report is further mum as to whether the structural changes purportedly brought about by the Defendant to the suit flat were in fact improvements and renovations to make it habitable/ more convenient.
24. So far as the holes found on the floor and the walls of suit flat are concerned, they must have been done by the Defendants for installing wooden partition in terms of permission granted in the lease deed dated __________ obviously on eviction of Defendant , the wooden partition was removed leaving holes in the floor and walls. Plaintiff cannot take exception to the arrangement which he himself had permitted.
25. Plaintiff was entitled to inspect the suit flat at regular intervals as per the terms of lease deed admitted by the parties yet he does not claim to have exercise that right since litigation between parties has started quite early in their relationship , the exercise of such right may not have remain feasible but Plaintiff did not seek enforcement of lease agreement in this behalf.
..17..
26. The probable time when the windows of suit flat could have been removed by the Defendants from their original place and replaced at extended place has not been estimated by the surveyor . The extended portion must have been visible even from outside the flat. However, no exception by way of notice, complaint to Municipality and police was taken. Plaintiff does not claim to have initiated the execution proceedings of injunction order Ex. PW 1/D-1 either.
27.There is no allegation that maintenance society of the building had taken up the matter of unauthorized construction by the occupant of suit flat with the Plaintiff. There is also nothing to perceive that occupants of adjacent flat on the same floor or one situated above on the third floor and below on the first floor to the suit flat had taken exception to the alleged structural changes brought about in it with the Plaintiff. No photographs of the flat showing alleged deplorable condition of the suit premises was taken and produced in Court . No documentary evidence of Plaintiff having effected repairs to undo the damage and incurred expenses filed . The Defendants thus seems to have enhanced the carpet area of suit flat with no resultant ..18..
adverse consequences to the Plaintiff.
28. For these reasons Plaintiff could not substantiate his claim for damages on the basis of estimate given in Architect's report Ex. PW 2/1 . The issue is therefore, decided in faovur of the Defendants and against the Plaintiff. ISSUE No. 6
29. Plaintiff has claimed pendent lite interest at the rate of 24 % per annum on the amount that may be found due against the Defendants . Section 26 of Delhi Rent Control Act enjoins a tenant to pay delayed rent to the landlord with interest at the rate of 15 % per annum. Although the parties here are not so related with each other yet the parameter of interest, in the facts and circumstances of the case is a valid guide for deciding the controversy. The award of interest otherwise seems balanced and justified. Issue is decided accordingly.
ISSUE No. 7
30.A a sequel of above findings suit is partly decreed in favour of the Plaintiff and against the Defendants for a sum of Rs. 2,03,912/-with interest at the rate of 15 % per ..19..
annum from the date of filing of suit till today and proportionate costs. It is needless to mention that the amount that Defendants had paid to the Plaintiff during pendency of suit has to be adjusted against the decreetal sum.
31. Decree sheet be accordingly prepared. File be consigned to record room.
ANNOUNCED IN THE OPEN (SUNIL KR AGGARWAL)
COURT ON DATED: 12.12.07 ADDL. DISTRICT JUDGE
DELHI