Delhi District Court
Sh.G.P.Singh vs Sh.Manish Kumar Sharma on 30 April, 2012
IN THE COURT OF SH.VIKAS DHULL:SENIOR CIVIL JUDGE CUM
RENT CONTROLLER, DWARKA COURTS, NEW DELHI
CS NO: 126/11
Sh.G.P.Singh
S/o late Pratap Singh
R/o K-39, Kirti Nagar
New Delhi-110 015. ... Plaintiff
Versus
Sh.Manish Kumar Sharma
S/o Sh.D.L.Sharma
Proprietor Sharma Enterprises
CB-228A, First Floor, Naraina
Ring Road, New Delhi-110 028.
Also at:
CB-248, Naraina Ring Road
New Delhi-110 028 Defendant
Date of institution of suit : 05.05.2011
Date on which judgment reserved : 24.04.2012
Date on which judgment pronounced : 30.04.2012
JUDGMENT
1. This is a suit filed by the plaintiff for possession, recovery of arrears of rent, mesne profits/damages and bank charges from the defendant. It is averred in the plaint that defendant was a tenant in respect of first floor of property bearing no. CB-228A, Naraina Ring Road, New Delhi-110 028 (hereinafter referred to as suit property) consisting of an office and a big hall having total area of 106 sq.yards at a monthly rent of Rs.6,820/- besides electricity charges under the plaintiff who is the landlord of the same. It is CS NO: 126/11 1/23 averred in the plaint that the defendant was very irregular in payment of rent and had never paid the rent in time. It is averred in the plaint that rent for the months of February and March, 2010 has been paid by the defendant vide cheques. However, rent for the month of January, 2010 paid vide cheque no. 823723 dated 20.01.2010 for Rs.6,820/-was dishonoured on presentation. Thereafter, defendant had not paid any rent to the plaintiff despite repeated requests and demands. It is averred that defendant is in arrears of rent w.e.f. April, 2010 till date and that rent for the month of January, 2010 is also due towards the defendant. It is averred that on persistent demands of the plaintiff with regard to arrears of rent, defendant delivered two cheques bearing nos. 287519 and 287520 each dated 20.12.2010 and 20.01.2011 for Rs.6,820/- each in the last week of January, 2011 for the months of April and May, 2010 which on presentation were dishonoured. It is averred that defendant is in arrears of rent w.e.f. April, 2010 together with rent for the month of January, 2010 which defendant is liable to pay. It is averred that besides the said amount of arrears of rent, defendant is also liable to pay Rs.300/- as bank charges debited from the account of plaintiff by his banker on account of dishonoring of three cheques at the rate of Rs.100/- per cheque which defendant has also not paid.
2. Tenancy of the defendant was terminated vide legal notice dated 16.03.2011. It is averred that said notice had been sent to the defendant on the address of suit property as well as on residential address of defendant by registered AD post as well as through Courier. It is averred that defendant deliberately had not accepted the notice sent under Regd.AD post on both the addresses despite CS NO: 126/11 2/23 several information given by the postman. It is averred that defendant is deemed to have been served with the notice under the law. It is further averred that tenancy of the defendant qua the suit property stood terminated at the end of 2nd April, 2011 i.e.after expiry of 15 days from the date of refusal by the defendant. It is averred that after termination of tenancy of defendant qua suit property, defendant has got no right or interest to retain the possession of the suit property. It is averred that after the termination of tenancy of defendant, he became unauthorized occupant in respect of the suit property and hence, liable to pay mesne profits/damages for unauthorized use and occupation of the suit property at a monthly rent of Rs.15,000/- or Rs.500/-per day which is the prevailing market rate of rent for similar premises in the vicinity of the suit property. Accordingly, it is prayed that decree of possession be passed in favour of plaintiff and against the defendant in respect of suit property with further direction to direct the defendant to pay arrears of rent of Rs.89,115/- w.e.f. April, 2010 uptil 02.04.2011 including rent for the month of January, 2010. It is further prayed that a decree of mesne profits/damages for unauthorized use and occupation of the suit property at the rate of Rs.15,000/- per month or Rs.500/- per day w.e.f.03.04.2011 till the vacation of suit property and handing over its peaceful and vacant possession to the plaintiff be passed. A prayer is also made to pass a decree for recovery of Rs.300/- as bank charges which had been debited from the account of the plaintiff by his banker on account of three dishonored cheques of defendant on presentation. Cost of the suit has also been prayed for with pendente lite interest at the rate of 15% p.a.on the arrears of rent, mesne profits/damages.
CS NO: 126/11 3/233. In the written statement, objections were raised that plaintiff has not approached the court with clean hands and has concealed material facts. It was submitted that plaintiff is not the owner or the landlord of the suit property. It was further submitted that defendant has been paying rent to the landlord Sh.Lovi Pal Singh regularly sometimes by cheques and sometimes in cash. It was submitted that landlord never issued any receipt to the defendant. It was submitted that plaint is not maintainable for want of non-joinder of necessary parties. It was submitted that plaintiff has not filed any document to show his ownership. It was further submitted that owner is also not impleaded as necessary party. It was submitted that suit is not maintainable as it does not disclose any cause of action. It was submitted that the suit is gross abuse and misuse of the process of law. It was submitted that the suit is liable to be rejected under Order 7 rule 11 Code of Civil Procedure, 1908 (hereinafter referred to as CPC).
4. In reply on merits, it was denied that defendant is tenant under the plaintiff and that the plaintiff is the landlord of the suit property. It was denied that tenancy of defendant being a monthly one used to start from the first day of the English Calender Month and end on the last day of that month. It was submitted that the question of tenancy can arise only with the landlord and not the plaintiff. It was submitted that plaintiff never disclosed to the defendant that he has purchased the suit property. It was denied that defendant was irregular in payment of rent and had never paid the rent in time. It was denied that the defendant had paid the rent for the month of January, 2010 vide cheque dated 20.01.2010 for Rs.6,820/- bearing no. 823723 and it was dishonoured on presentation. It was further denied that the CS NO: 126/11 4/23 defendant had paid rent for the month of February, 2010 on 31.07.2010 vide cheque and the cheque was honoured on presentation and that the rent for the month of March, 2010 was paid on 13.09.2010 by cheque and that it was dishonoured and again on presentation, it got honoured. It was denied that defendant had not paid any rent to the plaintiff despite repeated requests and demands and as such defendant is in arrears of rent w.e.f. April, 2010 till date. It was denied that besides the said arrears, defendant had not paid the rent to the plaintiff for the month of January, 2010. It was submitted that said facts would have some significance if plaintiff would have been the landlord of the defendant. It was denied that on persistent demands regarding arrears of rent, defendant delivered two cheques bearing nos. 287519 and 287520 dated 20.12.2010 and 20.01.2011 for Rs.6,820/- each in the last week of January, 2011 to the plaintiff. It was further denied that defendant is in arrears of rent w.e.f. April, 2010 together with rent for the month of January 2010 which defendant is liable to pay and had not paid despite repeated requests and demands by plaintiff. It was denied that besides the said amount of arrears of rent, defendant is liable to pay Rs.300/- as bank charges debited from the account of plaintiff by his banker on account of dishonouring of three cheques at the rate of Rs.100/-each. It was denied that notice dated 16.03.2011 had been sent to the defendant on the address of suit property as well as on residential address of the defendant by registered AD post and through courier.It was denied that defendant deliberately with malafide intention had not accepted the said notice. It was denied that registered envelopes sent at the suit premises address as well as residential address received back with the CS NO: 126/11 5/23 remarks " addressee not met, information given" of postal authority. It was submitted that the plaintiff never sent any notice to the defendant. It was further denied that the tenancy of the defendant qua the suit property stood terminated at the end of 2nd April, 2011. It was further denied that after the termination of tenancy, defendant became unauthorized occupant in respect of suit property and thus, liable to pay mesne profits/damages for the unauthorized use and occupation of the suit property at a monthly rent of Rs.15,000/- or Rs.500/-per day. It was further denied that defendant is liable to pay the rent uptil 2nd April, 2011 w.e.f. 01.04.2010 at the rate of Rs. 6,820/- per month and also the rent for the month of January, 2010 which comes to Rs.89,115/-. It was further denied that defendant is liable to pay the mesne profits till the date of vacation and handing over the suit property to the plaintiff at the rate of Rs.500/-per day. It was submitted that only landlord can terminate the tenancy of the tenant. It was submitted that no cause of action arose in favour of plaintiff and against the defendant. It was submitted that plaintiff has neither valued the suit property nor has paid the proper court fee. Accordingly, a prayer was made to dismiss the suit.
5. In replication filed by the plaintiff to the written statement of defendant, it was denied that plaintiff has not approached the court with clean hands and has concealed material facts. It was submitted that defendant since beginning has been paying the rent to the plaintiff through cheques who had let out the suit property to the defendant. It was submitted that a rent agreement was also executed between the plaintiff and the defendant on 30.01.2008. it was denied that plaintiff is not the landlord of the suit property. It was further denied that defendant has been paying the rent to Sh.Lovi CS NO: 126/11 6/23 Pal Singh regularly. It was submitted that Sh.Lovi Pal Singh is the son of plaintiff. It was submitted that the suit property has been let out to the defendant by plaintiff as the authorized representative of his son Sh.Lovi Pal Singh. It was submitted that defendant never asked rent receipt from the plaintiff as he had been paying the rent by cheques. It was denied that the defendant had sent blank cheques to the landlord without filing the name column. It was submitted that defendant sometimes used to deliver the cheques without filling the name column and sometimes by filing the name column by mentioning the name of plaintiff. It was submitted that there is no legal requirement to implead the owner of property when there is a relationship of landlord and tenant between the parties. It was submitted that under the provisions of Section 116 of the Indian Evidence Act, the defendant/tenant is estopped from denying the relationship between him and the plaintiff. Rest of the averments made by the defendant in the written statement were denied and those stated in the plaint were reiterated.
6. From the pleadings of the parties, the following issues were framed vide order dated 29.08.2011:--
i. Whether plaintiff is entitled for a decree of possession with regard to suit property as prayed for in the plaint? OPP ii. Whether plaintiff is entitled for recovery of arrears of rent of Rs.89,115/- w.e.f. April 2010 till 02.04.2011 including rent for the month of January 2010?OPP iii. Whether plaintiff is entitled for mesne profits Rs.15,000/- per month w.e.f 03.04.2011 till vacant possession is handed over by the defendant?OPP iv. Whether plaintiff is entitled for recovery of Rs.300/- as bank charges from the defendant on account of dishonourement of cheque ?OPP v. Whether plaintiff is entitled for pendentelite interest @ 15% on the arrears of rent and mesne profits from the defendant?OPP vi. Whether plaintiff is not the owner of the suit property?OPD CS NO: 126/11 7/23 vii.Whether suit is bad for non-joinder of necessary parties that is the owner of the property Sh Lovi Pal Singh?OPD viii.Relief.
7. Thereafter, the matter was posted for plaintiff's evidence. Plaintiff has examined himself as PW1, Sh.Raj Kumar Arora, Franchisee Incharge, DTDC Courier, Khanna Market as PW2, Sh.Kailash Prashad Shah, Assistant Manager, Vijaya Bank as PW3, Sh.Satish Kumar, Officer, Canara Bank, Mayapuri as PW4 and Sh.Dayanand, PRI, Post Office, Civil Lines as PW5. No other witness was examined by the plaintiff and accordingly, plaintiff's evidence was closed. In defence, defendant examined himself as DW1. No other witness was examined on behalf of defendant. Accordingly, the defence evidence was closed. Thereafter the matter was posted for final arguments.
8. I have heard the counsels for plaintiff Sh.Ravinder Singh and Ms.Veena Tanwar and Sh.M.C.Premi, counsel for defendant and have perused the material on record.
9. My finding on various issues is as under:-
Issue No.1 Whether plaintiff is entitled for a decree of possession with regard to suit property as prayed for in the plaint? OPP The onus to prove this issue was upon the plaintiff. The plaintiff in order to be entitled for a decree of possession with regard to suit property is required to prove the following ingredients:--
(A) Existence of relationship of landlord and tenant. (B) Rate of rent being more than Rs.3,500/- (to exclude the protection of statutory law i.e. Delhi Rent Control Act, 1958). (C) Termination of tenancy by serving a notice u/s 106 of the Transfer of Property Act, 1882 (hereinafter referred to as TP Act) CS NO: 126/11 8/23
10.A. Existence of relationship of landlord and tenant.
It is deposed to by the plaintiff that he had let out the suit property to the defendant being the attorney of his son Sh.Lovi Pal Singh and a rent agreement was executed between him and the defendant which is exhibit as PW1/21. In the cross examination of PW1, the rent agreement Ex.PW1/21 was not challenged in any manner meaning thereby that its execution was admitted by the defendant. Further in the cross examination of defendant as DW1, the rent agreement Ex.PW1/21 was put to him and DW1 admitted the execution of rent agreement Ex.PW1/21 between him and the plaintiff and he also identified the signature of plaintiff at point A and that of his at point B on the rent agreement Ex.PW1/21. In the light of rent agreement Ex.PW1/21, it is proved on record that there exists a relationship of landlord and tenant between the parties.
11.Another fact which is proved on record by the plaintiff establishes the relationship of landlord and tenant between the parties. PW1 has deposed on oath that rent @ Rs.6,820/- per month was being tendered by the defendant to him through cheques. In the cross examination, PW1 has again reiterated that all the cheques regarding rent w.e.f. 2008 onwards are being issued by the defendant in his name. However, no suggestion has been given by defendant challenging the testimony of PW1 regarding receipt of rent from the defendant through cheques. The deposition made by defendant as DW1 in his examination in chief and in his cross examination that he had delivered the blank signed cheques containing all the particulars except the name of the payee, at the house of plaintiff, is nothing but an afterthought as no suggestion has been given to PW1 in this CS NO: 126/11 9/23 regard. Further, during the cross examination of defendant as DW1, two cheques Ex.DW1/P1 and Ex.DW1/P2 were put to DW1 and DW1 admitted that cheques have been issued by him. However, he denied that name of payee i.e.Sh.G.P.Singh in the cheques Ex.DW1/P1 and Ex.DW1/P2 are in his handwriting. I have carefully perused the cheques Ex.DW1/P1 and Ex.DW1/P2 and the same have been filled up in the same handwriting and with the same pen. Had the defendant issued cheques with the name of payee in blank, the name of payee in cheques Ex.DW1/P1 and Ex.DW1/P2 would not have been in the same handwriting and in the same ink. Further no steps have been taken by the defendant to prove his defence that name of payee in the cheques Ex.DW1/P1 and Ex.DW1/P2 are not in his handwriting. Therefore, cheques Ex.DW1/P1 and Ex.DW1/P2 further prove that rent was being tendered by the defendant to the plaintiff through cheques.
12.Plaintiff has also examined PW3 Sh.Kailash Prashad Shah, Assistant Manager, Vijaya Bank, who has proved on record certified copy of statement of account Ex.PW3/1 of M/s.Sharma Enterprises. In his cross examination, DW1 deposed that Sharma Enterprises is the proprietorship concern of his son Sh.Yatinder Sharma. The statement of account Ex.PW3/1 further proves that defendant had made payment of rent through cheques in the name of plaintiff. There are various entries in Ex.PW3/1 showing the payment through cheques in the name of plaintiff. Therefore, statement of account Ex.PW3/1 further proves that rent was being tendered by the defendant through account of his son to the plaintiff through cheques.
13.Lastly, non-examination of Sh.Lovi Pal Singh by the defendant further proves that rent was being tendered by the defendant to the plaintiff, CS NO: 126/11 10/23 who was the landlord of the defendant. The defence of the defendant was that he was tendering rent @ Rs.6,820/- per month to Sh.Lovi Pal Singh, who was his landlord. Since plaintiff had denied the suggestion of defendant regarding Sh.Lovi Pal Singh being the landlord of the defendant, it was incumbent upon the defendant to have examined Sh.Lovi Pal Singh to prove the fact that Sh.Lovi Pal Singh was the landlord of the defendant and rent was being received by him through cheques wherein name of payee was in blank. Sh.Lovi Pal Singh was the best evidence available with the defendant to have proved his defence regarding existence of relationship of landlord and tenant between him and Sh.Lovi Pal Singh and also regarding the fact that rent was being tendered to Sh.Lovi Pal Singh. However, Sh.Lovi Pal Singh has not been examined in this case by the defendant. Therefore, adverse inference has to be drawn u/s 114 of the Indian Evidence Act, 1872 against the defendant that had defendant examined Sh.Lovi Pal Singh as a witness in this case then his evidence could not have been favourable to the defence of the defendant. Therefore, it further proves that there did exist relationship of landlord and tenant between the plaintiff and the defendant and that is why defendant was tendering rent through cheques to the plaintiff.
14.During the course of arguments, it was contended by the counsel for defendant that PW1 has admitted in his cross examination that Sh.Lovi Pal Singh is the owner of the suit property and he is the attorney holder of Sh.Lovi Pal Singh. It is further submitted by the counsel for defendant that the present suit has not been filed by plaintiff as attorney holder of Sh.Lovi Pal Singh, therefore, plaintiff has got no locus standi to file the present suit as relationship of landlord and tenant exists between Sh.Lovi Pal Singh and defendant. To further CS NO: 126/11 11/23 buttress his argument, counsel for defendant has drawn the attention of this court to the rent agreement Ex.PW1/21 wherein also this fact is recorded that plaintiff is entering into a rent agreement with the defendant as attorney of Sh.Lovi Pal Singh. Accordingly, it was submitted by counsel for defendant that in the light of admission made by PW1 and rent agreement Ex.PW1/21, it is proved that there does not exist any relationship of landlord and tenant between plaintiff and defendant. The said contention of the counsel for defendant is not acceptable. Although it is true that the owner of the suit property is Sh.Lovi Pal Singh but the landlord qua defendant is the plaintiff as rent agreement Ex.PW1/21 has been executed between plaintiff and defendant and even rent is being tendered by the defendant to the plaintiff. Since plaintiff had inducted the defendant as a tenant in the suit property vide rent agreement Ex.PW1/21 and even rent was being received by him from the defendant, therefore, as per Section 116 of the Indian Evidence Act, 1872, defendant is estopped from denying the title of the plaintiff.
15. Further the facts of the present case are squarely covered by the facts of the case reported in Ashok Bimal Ghosh V Smt.Beant Kaur, 2002 (331) JT 559(SC). In the case before the Hon'ble Supreme Court of India, respondent Smt.Beant Kaur had inducted the appellant as tenant in the suit property. The main defence of the appellant was that since respondent was not the owner of the suit property and ownership vests with the son of respondent, therefore, suit was bad for non-joinder of necessary parties. Although respondent admitted that her son is the owner of suit property but as per an internal family arrangement between respondent and her son, respondent was allowed to enjoy the suit property and earning thereof during her life CS NO: 126/11 12/23 time and, therefore, respondent was allowed to recover rent and possession of suit property. The Hon'ble Supreme Court of India while dismissing the appeal of the appellant had held that since respondent/landlady had inducted the appellant as tenant in the suit property, therefore, u/s 116 of the Indian Evidence Act, 1872, appellant cannot be permitted to deny the title of the respondent. It was further held that rule of estoppel contained in Section 116 of the Indian Evidence Act, 1872 continues to operate so long as tenant has not surrendered possession of tenanted premises to his lessor or unless evicted by holder of title paramount.
16.In the present case also, although the owner of the suit property is Sh.Lovi Pal Singh but plaintiff as attorney of Sh.Lovi Pal Singh had created tenancy in favour of defendant vide rent agreement Ex.PW1/21 and even rent was being received by him. Therefore, relationship of landlord and tenant existed between the parties and defendant is estopped from denying the title of plaintiff as landlord in this case unless he has delivered the possession of suit property to him.
17. It was further contended by the counsel for defendant that rent agreement Ex.PW1/21 is for a period of more than one year and since the same is unregistered document, therefore, it will not create relationship of lessor and lessee between the parties In support of his contention, he has relied upon the judgment of the Delhi High Court reported as M/s.Chemical Sales Agencies V Smt.Naraini Newar, AIR 2005 Delhi 76. Accordingly, it was submitted that in the light of unregistered rent agreement Ex.PW1/21, no relationship of landlord and tenant is created between the parties. The said contention of counsel for defendant is not acceptable. Although it is true that rent CS NO: 126/11 13/23 agreement Ex.PW1/21 is an unregistered document and the same is inadmissible in evidence but as per proviso to Section 49 of the Registration Act, 1908, unregistered document can be relied upon for collateral purposes. In the matter of Satish Chand Makhan and Ors. Vs Goverdhan Dass Byas, AIR 1984 (SC) 143, it was held in para 6 that the unregistered draft lease agreement Ex.B2 was admissible under the proviso to Section 49 of the Registration Act, 1908 only for a collateral purpose for showing the nature and character of possession of defendants. Therefore, Ex.PW1/21 although is an unregistered document, can be looked into for collateral purpose i.e.for showing the nature and character of possession of defendant. Therefore,if Ex.PW1/21 is used for collateral purpose then it establishes that the character and nature of possession of defendant was in the capacity of a tenant of the plaintiff. The judgment relied upon by the counsel for defendant is not applicable as in the said judgment, no reference has been made to proviso to Section 49 of the Registration Act, 1908. Accordingly, this contention of counsel for defendant is also rejected.
18.Therefore, plaintiff has successfully discharged the onus put upon him and has proved that there exists relationship of landlord and tenant between him and the defendant.
19.B.Rate of rent being more than Rs.3,500/- (to exclude the protection of statutory law i.e. Delhi Rent Control Act, 1958).
It is an admitted case between the parties that the rent of the suit property is Rs.6,820/-per month. Hence, this fact also stands proved by the plaintiff.
20.C.Termination of tenancy by serving a notice u/s 106 of the TP Act.
The onus to prove this fact was upon the plaintiff. Plaintiff has deposed on oath that he has terminated the tenancy of the defendant through a notice dated 16.03.2011 Ex.PW1/10. It is further deposed to CS NO: 126/11 14/23 by PW1 that notice Ex.PW1/10 was sent through registered post, receipts of which are Ex.PW1/11 and Ex.PW1/12 and also through DTDC Courier, receipts of which are Ex.PW2/1 and Ex.PW2/2. However, defendant had refused to accept the notice despite serving of information by the postal employee and, therefore, it is deemed service in the light of report on returned envelopes Ex.PW1/13 and Ex.PW1/14. Further, defendant also refused to receive the notice sent through courier and in the light of report of courier company on the returned envelopes Ex.PW2/5 and Ex.PW2/6, it is deemed to have been served upon the defendant.
21. Plaintiff examined PW2 Sh. Raj Kumar Arora from the DTDC courier and PW5 Sh. Dayanand from the postal department to prove delivery report. The defendant could not extract anything from the testimony of PW2 Sh.Raj Kumar Arora regarding the report of refusal on the couriers Ex.PW2/5 and Ex.PW2/6. Although PW5 has deposed falsely with regard to report of refusal on Ex.PW1/14 but his report regarding registered envelope not being claimed by defendant was neither challenged in the cross examination nor can be doubted in the light of report of postal employee on Ex.PW1/13. Further defendant has admitted in his cross examination that addresses mentioned on the registered envelopes Ex.PW1/13 and Ex.PW1/14 and courier receipts Ex.PW2/5 and Ex.PW2/6 are his correct addresses. Since it is proved on record that registered envelopes Ex.PW1/13 and Ex.PW1/14 were sent at the correct address of the defendant, therefore, as per Section 27 of the General Clauses Act, 1897, a presumption arises in favour of plaintiff that registered envelopes Ex.PW1/13 and Ex.PW1/14 were duly served upon the defendant. (In this regard reference can be made to judgments of Hon'ble Supreme Court reported as State CS NO: 126/11 15/23 of MP V Hiralal (1996) 7 SCC 523 and K.Bharkaran Vs Shankaran V. Balan, 1999 Cr.L.J.4606 (Para 23 and 25). However, the said presumption is rebutable but defendant has not been able to rebut the presumption as no suggestion has been given to PW5 Sh.Dayanand from post office that the report on Ex.PW1/13 is a manipulated report and no information was delivered to the defendant. Hence, defendant has failed to prove that he was not given the information as per Ex.PW1/13 regarding the legal notice Ex.PW1/10. Hence, it is proved that the legal notice Ex.PW1/10 was duly served upon the defendant vide Ex.PW1/13 and his tenancy was duly terminated.
22. Even assuming that notice Ex.PW1/10 was not served upon the defendant then also the tenancy of the defendant stood terminated by filing the present suit. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India reported as M/s.Nopani Investment(P) Ltd.V Santokh Singh (HUF), AIR 2008 SC 673 wherein it was held that under the general law, no notice to quit is required and filing a suit for eviction itself is notice to quit u/s 106 of the TP Act, 1882.
23. In the light of above discussion, all the ingredients for getting possession with regard to suit property have been proved by the plaintiff. Hence, this issue is decided in favour of plaintiff and against the defendant.
24.Issue No.2 Whether plaintiff is entitled for recovery of arrears of rent of Rs.89,115/- w.e.f. April 2010 till 02.04.2011 including rent for the month of January 2010?OPP The onus to prove this issue was upon the plaintiff. PW1 has deposed on oath that rent for the month of January, 2010 given by defendant through cheque was dishonoured on presentation and CS NO: 126/11 16/23 therefore, defendant is in arrears of rent for the month of January, 2010. It is further deposed to by him that defendant has not paid the rent from April,2010 till 02.04.2011 @ Rs.6,820/- per month. PW1 has also filed on record the dishonored cheque towards the rent of January, 2010 which is Ex.PW1/2 alongwith return memo Ex.PW1/3. The only defence of the defendant was that he has been tendering rent @ Rs.6,820/- per month to Sh.Lovi Pal Singh, who is the owner of the suit property. Defendant had also given a suggestion to this effect to PW1 in his cross examination but the same was denied. It is already proved on record by the plaintiff that rent agreement was executed between him and the defendant vide Ex.PW1/21 and even rent was being tendered by defendant to the plaintiff through cheques. Therefore, onus was upon the defendant to have proved that despite creation of tenancy by plaintiff, he was tendering rent to the owner i.e. Sh.Lovi Pal Singh. The best evidence which was available with the defendant who could have proved tendering of rent was Sh.Lovi Pal Singh. However, defendant has taken no steps to examine Sh.Lovi Pal Singh as a witness in this case to prove his defence. Since defendant had withheld the best evidence available with him, therefore, adverse inference has to be drawn against him u/s 114 of the Indian Evidence Act, 1872 that had he examined Sh.Lovi Pal Singh as a witness, his testimony would not have been favourable to the defence of the defendant.
25.Another fact which belies the defence of the defendant is the contradiction in evidence of defendant regarding tendering of rent through cheques and cash to Sh.Lovi Pal Singh. Although defendant in his examination in chief has deposed that he was tendering rent to Sh.Lovi Pal Singh sometimes by cheque and sometimes in cash but CS NO: 126/11 17/23 in his cross examination, he has deposed that rent in cash was sent either in person or through his son at the house of plaintiff where it was received by plaintiff's wife. Therefore, in the cross examination, defendant has introduced a new person i.e. plaintiff's wife, who was receiving the rent in cash. This deposition made by defendant in the cross examination is in complete variance with the deposition made by him in his examination in chief. Due to this contradiction in the evidence of DW1, his testimony that rent was being tendered in cash, cannot be believed.
26.The second ground for disbelieving the testimony of defendant regarding tendering of rent in cash to the plaintiff's wife is the fact that said defence has been taken up for the first time by defendant in his cross examination and no such defence has been taken up by defendant either in his written statement or by giving suggestion to plaintiff in his cross examination. Therefore, this defence is an after thought and cannot be believed.
27. Lastly, the defence of the defendant that he had tendered rent in cash cannot be believed as it has been proved on record that defendant was tendering rent through cheques. It is not believable that a person who is tendering rent through cheques will not insist upon any receipt while tendering rent in cash. Further defendant has not explained as to in what circumstances, he had tendered the rent in cash when on earlier occasions i.e.from creation of tenancy till March, 2010, he was tendering the rent through cheques. Therefore, on this ground also, defendant's evidence is not believable that he had tendered rent in cash from April, 2010 till April, 2011.
28. With regard to defendant being in arrears of rent for the month of CS NO: 126/11 18/23 January, 2010, there is a categorical admission made by defendant in his cross examination that cheque for the rent for January, 2010 was dishonored. No evidence has been led on record by the defendant to prove that he had tendered the rent in cash against the dishonored cheque. Therefore, it has also been proved on record that defendant was in arrears of rent for the month of January, 2010.
29.In the light of above discussion, plaintiff has successfully discharged the onus put upon him and has proved on record that defendant was in arrears of rent for the month of January, 2010 and thereafter from April, 2010 till 02.04.2011. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
30.Issue No.3 Whether plaintiff is entitled for mesne profits Rs.15,000/- per month w.e.f 03.04.2011 till vacant possession is handed over by the defendant?OPP The onus to prove this issue was upon the plaintiff. Plaintiff has deposed on oath that the suit property can fetch market rate of rent of Rs.15,000/- per month w.e.f. 03.04.2011 as the same is prevailing market rate of rent for similar premises in the vicinity of suit property. However, defendant has denied about the same. Plaintiff has not taken steps to examine any owner of the property in the neighbourhood of plaintiff's property to show that the market rate of rent is Rs.15,000/-per month as on 03.04.2011 of the suit property. Therefore, plaintiff has failed to prove that he is entitled to Rs.15,000/-per month as mesne profits w.e.f. 03.04.2011. However, this court can take judicial notice of the fact regarding increase of rent @ 10% for every three years. I am fortified in my reasoning by the judgment of the Hon'ble Delhi High Court reported as Vinod Khanna V Bakshi Sachdev (Deceased) through L.Rs.,AIR 1996 CS NO: 126/11 19/23 (Delhi) 32DB wherein it was held that even in the absence of substantial evidence led on record regarding increase of rent, court can take judicial notice of the fact of increase of rent. Similar view was expressed by the Hon'ble Supreme Court of India in the matter of D.C.Oswal V V.K.Subbiah, AIR 1992 SC 184.
31. Therefore, this court while taking judicial notice of the increase of rent of 10% every three years fixes the mesne profits at the rate of Rs.7500/-per month w.e.f.03.04.2011 till the date vacant possession is handed over to the plaintiff. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
32.Issue No.4 Whether plaintiff is entitled for recovery of Rs.300/- as bank charges from the defendant on account of dishonourement of cheque ?OPP The onus to prove this issue was upon the plaintiff. Plaintiff has deposed on oath that since three cheques of the defendant were dishonoured, therefore, plaintiff's bank had debited his account with Rs.300/- @ Rs.100/-per cheque on account of cheque bouncing charges which defendant is liable to pay. In order to substantiate his testimony, plaintiff has filed on record his saving bank account passbook which is Ex.PW1/8. There has been no cross examination by the defendant on this deposition. Therefore, defendant has admitted that due to dishonorment of his three cheques, amount of Rs.300/- was debited by plaintiff's bank. Hence, plaintiff has proved that he is entitled to Rs.300/-as bank charges from the defendant. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
33. Issue No.5 Whether plaintiff is entitled for pendentelite interest @ 15% on the arrears of rent and mesne profits from the defendant?OPP CS NO: 126/11 20/23 The onus to prove this issue was upon the plaintiff. Plaintiff has led no evidence on record to show that he is entitled for 15% interest on the arrears of rent and mesne profits from the defendant. However, this court while exercising its discretion u/s 34 of the CPC deems it appropriate to grant interest @ 10% per annum on the arrears of rent of Rs.89,115/- from 02.04.2011 till its realization subject to payment of court fees by the plaintiff. The plaintiff is also entitled for the interest @ 10% p.a.on the mesne profits from 03.04.2011 till the date of realization subject to payment of appropriate court fees.
34.Issue No.6 Whether plaintiff is not the owner of the suit property?OPD The onus to prove this issue was upon the defendant. There is an admission made by the plaintiff in his cross examination that he is not the owner of the suit property and the owner is Sh.Lovi Pal Singh, who is his son. In the light of admission made by plaintiff, defendant has proved on record that plaintiff is not the owner of the suit property. Accordingly, this issue is decided in favour of defendant and against the plaintiff.
35. Issue No.7 Whether suit is bad for non-joinder of necessary parties that is the owner of the property Sh Lovi Pal Singh?OPD The onus to prove this issue was upon the defendant. Since this is a legal issue, it can be decided on the basis of legal submissions made by respective parties and the material on record. Although it is true that owner of the suit property is Sh.Lovi Pal Singh but still the suit is not bad for non-joinder of Sh.Lovi Pal Singh as the present suit has been filed by plaintiff for possession in his capacity as landlord of the suit property. A suit for possession can be CS NO: 126/11 21/23 filed by the landlord and since in the present case, it has been proved on record in the light of rent agreement Ex.PW1/21 and tendering of rent to plaintiff that there exists relationship of landlord and tenant between the plaintiff and defendant, therefore, plaintiff is competent to seek possession from the defendant of the suit property without impleading Sh.Lovi Pal Singh. Hence, proper and necessary parties were before this court and suit does not suffer from non-joinder of Sh.Lovi Pal Singh. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
36.Issue No.8 Relief In the light of my finding on issues no.1,2,3,4 and 5, suit of plaintiff is decreed and defendant is directed to handover vacant possession of first floor of suit property bearing no. CB-228A, Naraina Ring Road, New Delhi-110 028 as shown in red in the site plan Ex.PW1/1 to the plaintiff. Defendant is further directed to pay Rs.89,115/- towards arrears of rent for January, 2010 and for the period from April, 2010 to 02.04.2011. Defendant is also directed to pay mesne profits @ Rs.7500/-per month w.e.f.03.04.2011 till the vacant possession is handed over to the plaintiff. Defendant is further directed to pay Rs.300/- as bank charges to the plaintiff on account of dishonoured cheques. Defendant is also directed to pay interest @ 10% p.a.on Rs.89,115/- from 02.04.2011 till its realization subject to payment of court fees by the plaintiff. Defendant is also directed to pay interest 10% per annum on mesne profits from 03.04.2011 till the vacant possession is handed over to the plaintiff of the suit property subject to payment of court fees by the plaintiff. Cost of the suit is also awarded in favour of plaintiff. Decree sheet CS NO: 126/11 22/23 be prepared accordingly. File be consigned to record room.
Announced in the open court (Vikas Dhull)
Dated: 30.04.2012 SCJ:RC
Dwarka/N.Delhi
CS NO: 126/11 23/23