Delhi District Court
Smt. Kavita Jain vs Sh. Munna Lal Sharma on 6 December, 2021
IN THE COURT OF MONA TARDI KERKETTA,
ADDITIONAL DISTRICT JUDGE (NE)-01,
KARKARDOOMA COURTS, DELHI
CS No. 143/2019
IN THE MATTER OF :-
Smt. Kavita Jain
W/o Mr. Ashok Jain,
R/o F-196, Mangal Bazar,
Laxmi Nagar,
Delhi-110 092. ..........Plaintiff
VERSUS
Sh. Munna Lal Sharma
S/o Late Sh. Ram Sahai Sharma
R/o K-631, Gali No. 3, Gautam Nagar,
Ghonda, Gurjan Khadar,
Delhi-110 053. ..........Defendant
Date of filing of the Suit : 31.07.2013
Date of final arguments : 02.12.2021
Date of the Judgment : 07.12.2021
Appearances :
For Plaintiff: Ms. Megha Chaturvedi, Adv.
For Defendant: Sh. C.P. Gaur, Adv.
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF RENT, DAMAGES/
MESNE PROFITS
JUDGMENT
1. The brief facts of the case as disclosed in the plaint are that plaintiff is absolute owner and in possession of property bearing No.K-631, Gali No. 3, Gautam Vihar, Ghonda, Gautam Nagar Delhi-53 and defendant was tenant of plaintiff in respect of ground and first floor of above said built property at rent of Rs. 20,000/- per month exclusive of electricity and water charges. A duly registered lease agreement dated 29.05.2009 was executed between plaintiff and defendant for a period of 2 years w.e.f. 01.05.2009.
CS No.143/19 Page 1 of 8 ADJ-01/NE/KKD/Delhi
2. It is further stated that defendant was a regular defaulter and did not pay any rent, water and electricity charges till 13.12.2009 except Rs.20,000/- as one month advance at the time of execution of the lease agreement. Seeing no way and in compelling circumstances, plaintiff sent a legal notice dt.14.12.2009 to defendant and only then defendant cleared the total outstanding dues in installments and paid the lease amount payable till December 2010.
3. It is further stated that on 15.09.2011 husband of plaintiff Sh. Ashok Jain personally contacted defendant and demanded total outstanding lease amount of Rs. 1,80,000/- i.e. up to Sept., 2011, however, defendant flatly refused and did not even permit him to inspect the suit property. Thereafter, plaintiff sent a legal notice dated 20.09.2011 to defendant thereby terminating his tenancy and demanding clearance of arrears of rent of Rs. 4,20,000/- for the period of January, 2011 to July, 2013 and Rs.2000 per day as damages from August, 2013 till delivery of possession of the suit property to plaintiff along with pendent lite and future interest @ 18% per annum.
4. Plaintiff has prayed to pass the following decrees in her favour and against defendant:
A) A decree of possession of the suit property i.e., property bearing no. K-
631, Ground and First floor, Gali no. 3, Gautam Vihar, Ghonda, Gujran Khadar, Delhi - 53, more specifically shown in red colour in the site plan; B) A decree for a sum of Rs. 1,80,000/- being arrears of rent along with interest @ 18% per annum.
C) A decree of damages @ Rs.2000/- per day along with pendentelite and future interest @ 18% per annum till the realization from August, 2013.
D) Cost of the suit. E) Any other/ further order(s) which this court deems fit in the light of the facts and circumstances of the present suit.
5. Defendant contested the present suit on the following grounds:
A) The suit of plaintiff is without any cause of action and ground of eviction of non-payment is not available to plaintiff.
CS No.143/19 Page 2 of 8 ADJ-01/NE/KKD/Delhi B) Plaintiff has concealed material facts and has not approached this court with clean hands. C) The rent agreement filed by plaintiff is forged and fabricated by plaintiff to mislead this court. D) Plaintiff neither signed nor served any legal notice to defendant thereby
terminating his tenancy of the suit property as required by law. E) Defendant had taken a friendly loan of Rs.14,00,000/- from husband of plaintiff Sh. Ashok Jain on execution of transfer documents of suit property in favour of plaintiff. A rent agreement was prepared by plaintiff assuring that property documents would again be transferred in the name of defendant as and when defendant returned the entire loan amount to plaintiff's husband.
However, plaintiff became dishonest and wants to grab property of defendant value of which is now in crores.
F) Defendant had constructed the entire suit property from his own fund and the name plate affixed in the house is in his name. The possession documents such as ration card, Election I card etc. are also in the name of defendant. Defendant is residing in the suit property since the day of completion of the construction and this fact is known to all the persons of the locality. Defendant has already returned entire amount of Rs.14,00,000/- along with interest to plaintiff in the presence of two known witnesses. G) The rent agreement dt. 29.05.2009 was prepared by plaintiff for the security purpose of her loan amount and Rs.20,000/- shown as rent in the lease agreement is interest of the loan amount to be paid per month. Defendant regularly paid interest of the loan amount. When defendant requested plaintiff to cancel the sale documents, rent agreement and payment of loan amount, plaintiff filed a false and frivolous suit. H) Plaintiff had no right to terminate the tenancy of defendant as defendant is the owner of the suit property.
I) Suit of plaintiff is liable to be dismissed as no requisite court fees has been affixed.
6) Vide orders, dated 11.03.2015, the following issues were framed by Ld. Predecessor of this court, on the basis of the pleadings of the parties, as under :
CS No.143/19 Page 3 of 8 ADJ-01/NE/KKD/Delhi
1. Whether plaintiff is entitled for a decree of possession in her favour ? OPP
2. Whether plaintiff is entitled for arrears of rent, as claimed ? OPP
3. Whether plaintiff is entitled for damages @ Rs.2000/-
per day with interest, as claimed? OPP.
4. Whether the alleged rent agreement is forged and fabricated? OPD.
5. Whether suit has been filed without any cause of action? OPD.
6. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
7. Relief.
7. Subsequent thereto, the matter was fixed for plaintiff's evidence. In order to prove her case, plaintiff examined herself as PW-1 and relied upon the documents Ex.PW-1/1, Ex.PW-1/2, Ex.PW-1/4 and Ex.PW-1/5 i.e., Lease agreement dt. 29.05.2009, Legal Notice dt. 14.12.2009 , 20.09.2011 and postal receipt. She was partly cross-examined by Ld. Counsel for defendant on 21.09.2017. It is pertinent to mention here that in the meanwhile, an application under order XII Rule 6 read with Section 151 CPC was filed on behalf of plaintiff and the same was allowed vide order dated 23.07.2020, and a decree for possession of the suit property was passed in favour of plaintiff and against defendant and a decree for possession was directed to be prepared.
Subsequent thereto, the matter was fixed for further cross- examination of PW-1 however, no further cross-examination of PW-1 was conducted on behalf of defendant. The court was constrained to close the opportunity of defendant of further cross-examination. On the statement of plaintiff, plaintiff's evidence was closed on 18.09.2021. Despite opportunities, no evidence was led by defendant during the trial.
8. After completion of the trial, final arguments were addressed on behalf of plaintiff on 15.11.2021. Defendant failed to address either oral arguments or to file written arguments, despite affording opportunities.
9. The issue-wise findings of the court are discussed as under: -
Since, the relief for decree of possession of the suit property was already passed in favor of plaintiff and against defendant on the application under CS No.143/19 Page 4 of 8 ADJ-01/NE/KKD/Delhi Order 12 Rule 6 read with Section 151 CPC, issue no.1 shall not be dealt with and rest of the issues shall be decided. Issue no. 4, 5 and 6 shall be dealt with first being the core issues as if decided in favour of defendant, the suit of plaintiff shall bound to fail for rest of the relief.
Issue No. 4 : Whether the alleged rent agreement is forged and fabricated? OPD.
Issue No 5: Whether the suit has been filed without any cause of action? OPD.
Issue No 6: Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
10. Issue No. 4, 5 and 6 are being taken up together as they can be decided through common discussion. The onus to prove these issues was fixed on defendant. But, during the trial, defendant did not lead any evidence in this regard. Furthermore, defendant failed to appear before this court since 30.05.2019. Even otherwise, there is nothing on record to hold that the suit of plaintiff should fail on account of the above grounds. Hence, these issues are decided against defendant and in favour of plaintiff.
Issue No.2: Whether plaintiff is entitled for arrears of rent, as claimed? OPP Issue No. 3: Whether plaintiff is entitled for damages @ Rs.2000/- per day with interest, as claimed? OPP.
11. The onus to prove these issues lied on plaintiff. In her affidavit, Ex.PW1/A, plaintiff reiterated her version as mentioned in the plaint. The testimony of plaintiff, regarding the arrears of rent and damages remained unrebutted, unchallenged and uncontroverted, as she was not subjected to any relevant cross-examination, on behalf of defendant on these aspects. No evidence was led by defendant during the trial, in this regard, to rebut her contentions.
12. In a suit for ejectment, the essential ingredients required to be satisfied are (a) Relationship of landlord and tenant between the parties; (b) The rate of rent being more than Rs. 3,500/- p.m. or the suit property otherwise being not covered by the Delhi Rent Control Act 1958; (c) Required notice duly served u/s 106 of Transfer of Property Act affording 15 days clear time to vacate the suit property.
13. Defendant admitted Landlord-Tenant relationship with plaintiff by admitting execution of Lease agreement Ex. PW-1/1 in respect of suit property between the parties. The Lease agreement Ex.PW-1/1 discloses the rate of rent as Rs. 20,000/- per month. The suit property is otherwise not covered by the Delhi Rent Control Act,1958. It is on record that the required notice under Section 106 of Transfer of Property Act affording 15 days clear time to vacate the suit property which is Ex.PW-1/4 was duly served upon defendant. In the judgment titled as Jeevan Diesel & Electrical Vs. Jasbir Singh Chadha 185(2011) DLT, it was held that filing of the suit is sufficient and there is no need of sending any notice to defendant. Hence, it is proved that tenancy of defendant was terminated after service of Legal Notice Ex.PW-1/4 and filing of the present suit. Defendant is now in illegal and unauthorized occupation of the suit property.
14. Defendant failed to disprove the amount of Rs. 1,80,000/- being arrears of rent as claimed in the plaint. As stated in para 06 of the plaint, the arrears of rent became payable from January, 2011 to September, 2011. Plaintiff is accordingly held entitled to recover arrears of rent from January, 2011 to September, 2011 @ Rs. 20,000/- per month from defendant that comes to total Rs.180,000/-. The court is of the view that the ends of justice would be met if plaintiff is awarded interest on arrears of rent @ 8% per annum as the interest @ 18% per annum as claimed in the plaint is exorbitant and excessive.
15. Plaintiff also claimed damages for unauthorized occupation of the suit property after termination of the tenancy. Since defendant is in possession of the suit property even after termination of tenancy consequently he is also liable to pay damages for use and occupation of the suit property since October, 2011. Plaintiff neither filed any documentary proof nor examined any other witness who is versed with the rentals prevailing in the area in which the suit property is situated. The lease deeds executed during the contemporaneous period to ascertain the prevalent market rate of rent was also not proved. As per Lease agreement Ex.PW-1/1, the tenancy commenced from 01.05.2009 for 02 years; rent amount due to be paid was Rs. 20,000/- per month and the same was liable to be increased @ 10% per annum. In the judgments titled as Sh. Sriram Pistons and Rings Ltd. vs. Basant Khatri, 1990 (2002) DLT 769; M/s M.C Aggarwal (HUF) vs. M/s Sahara India & ors., 2011 (183) DLT 105 it was held that if a landlord failed to lead evidence with respect to the prevalent rent, the court can take judicial notice of increase in the rent of metropolitan cities, more so, in commercial areas that a 15% increase of rent every year should be payable by a tenant to a landlord. In view of the abovesaid judgments, plaintiff is held entitled to 15% yearly cumulative increase on the last rent amount i.e. Rs. 20,000/- per month. Accordingly, plaintiff is awarded mesne profits commencing from October,2011 with a 15% increase, which shall be payable from second year onwards etc. after the termination of tenancy from October, 2011 till handing over of the possession by defendant subject to furnishing of deficient court fees, if any, by plaintiff. The 15% increase of the mesne profits shall be calculated on the total of mesne profits which are payable at the end of the first year, second year, third year etc. respectively. In view of the above discussion, issues in hand are accordingly decided in favour of plaintiff and against defendant.
RELIEF:-
16. In view of the findings on the issues framed, the suit of plaintiff is decreed in her favour and against defendant in the following terms: -
(a) Defendant shall pay arrears of rent from January, 2011 to September, 2011 @ Rs.20,000/- i.e., Rs.1,80,000/- with 8 % interest per annum;
(b) Defendant shall pay damages 15% yearly cumulative increase on the last rent amount i.e. Rs. 20,000/- per month from October, 2011 which shall be payable from second year onwards etc. after the termination of tenancy in September, 2011 till handing over of the possession by defendant subject to furnishing of deficient court fees, if any, by plaintiff. The 15% increase of the mesne profits shall be calculated on the total of mesne profits which are payable at the end of the first year, second year, third year etc. respectively;
(c) Defendant shall pay costs of the suit also.
17. Decree Sheet be prepared accordingly.
18. File be consigned to Record Room, after due compliance.
Digitally signed by MONA MONA TARDI KERKETTA
Location:
TARDI KARKARDOOMA
COURTS, DELHI
KERKETTA Date: 2021.12.06
17:06:33 +0530
Announced in the open court MONA TARDI KERKETTA
on this 6TH Day of December, 2021 Addl. District Judge(NE)-01
Karkardooma Courts, Delhi.
CS No.143/19
Kavita Jain vs. Munna Lal Sharma
06.12.2021
At 04.45 pm
Present : None.
Vide separate judgment of even date, the suit of the plaintiff is decreed in her favour and against defendant on following terms :
(a) Defendant shall pay arrears of rent from January, 2011 to September, 2011 @ Rs.20,000/- i.e., Rs.1,80,000/- with 8 % interest per annum;
(b) Defendant shall pay damages 15% yearly cumulative increase on the last rent amount i.e. Rs.20,000/- per month from October, 2011 which shall be payable from second year onwards etc. after the termination of tenancy in September, 2011 till handing over of the possession by defendant subject to furnishing of deficient court fees, if any, by plaintiff. The 15% increase of the mesne profits shall be calculated on the total of mesne profits which are payable at the end of the first year, second year, third year etc. respectively;
(c) Defendant shall pay costs of the suit also.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.Digitally signed by MONA
MONA TARDI KERKETTA
Location:
TARDI KARKARDOOMA
COURTS, DELHI
KERKETTA Date: 2021.12.06
17:06:43 +0530
MONA TARDI KERKETTA
ADJ-01/NE/KKD/DELHI
06.12.2021