Delhi District Court
Administrative Office vs Shri Vinod Kumar Sharma on 16 July, 2014
IN THE COURT OF SHRI A.S. JAYACHANDRA: ADDITIONAL
DISTRICT JUDGE-I: SHAHDARA DISTRICT: KARKARDOOMA
COURTS: DELHI.
RCA No.05/2014
Unique I.D No. 02402C0003442014
Shri Rajinder Vaid,
Secretary of Bhai Mati Das
Cooperative Group Housing Society Ltd.
Administrative Office,
HS-4/5, Ground Floor, Krishna Nagar,
Delhi-110051. ............... Appellant
Versus
Shri Vinod Kumar Sharma,
R/o H-4/5, Krishna Nagar,
Delhi-110051 ........ Respondent
Date of Institution : 06.01.2014
Order reserved on : 02.07.2014
Order passed on : 16.07.2014
JUDGMENT
1. The defendant in the trial court, by way of this appeal traduces the judgement and decree in Suit no. 269/2010 dated 30/11/2013 on the files of ld. JSCC/ASCJ, Shahdara, Delhi. The defendant in the trial court was directed to quit and deliver the vacant possession of the property in favour of the plaintiff and further, the said defendant is directed to pay arrears of rent @ Rs. 8,000/- per month from 01/06/2010 under the above decree. RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page1/14 The brief facts of the case:-
2-A. The plaintiff in the trial court (respondent in the appeal) filed a suit for ejectment in the capacity of the successor-in-interest of the deceased landlord- M. N. Sharma concerning property no. H-4/5, Krishna Nagar, Delhi. Late M. N. Sharma let out the property initially on 30/11/1996 upon the defendant having deposited a refundable amount of Rs.20,000/-. The defendant is in occupation of four rooms, kitchen, latrine and bathroom on the ground floor on rent. There was various rents/ lease deeds thereafter renewing the rent and the last rent agreement is dated 21/06/2007 for a period of three years and the rate of rent agreed is Rs.8,000/- per month with a refundable deposit of Rs.1,25,000/-. Sh. M. N. Sharma expired on 25/07/2007. The lease expired upon the efflux of time. Tenancy came to an end on 30/06/2010 and notice was issued on 21/22-05/2010 directing the tenant to quit. Since the defendant did not vacate, the suit was filed in the trial court seeking relief of ejectment, injunction and arrears of rent including damages. 2-B. The defendant filed the written statement and took up the preliminary objections that there is no cause of action and the reliefs are vague. He also took up that the site plan is incorrect. It is the society, which ought to have been sued and not in the individual capacity against the defendant. The suit is not maintainable since it is filed against an individual and not the RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page2/14 society. Valuation is also disputed. It is submitted that the suit property is in the occupation of M/s. Bhai Mati Dass Co-operative Group Housing Society. The suit is filed only as a counter blast since the defendant demanded the plaintiff the maintenance and security of the premises. It is contended that the co-operative society is registered one and Sh. R. K. Vaid (appellant) is authorized by the society to contest the case, who is the Hon' Secretary and a senior citizen. After the death of Shri M. N. Sharma, the plaintiff in the trial court had illegally put up a lock on the second floor. There is no other place for the society to function. The premises was taken for commercial-cum-residential purpose. There was no default in payment of rent. The agreement dated 21/06/2007 is admitted. The legal notice was replied. A demand was made by the plaintiff for payment of Rs.10, 24,514/-, which was spent on repairs, white-wash etc. by way of reply dated 09/07/2010. It is contended that rents are duly paid. It is also prayed that rent may be reduced by Rs. 1,000/- since the society has no source of its income. The other allegations of the plaint are denied. Plaintiff filed replication and denied all the contents of the W.S.
3. Issues before the court below:- The ld. court below after completion of pleadings had framed as many as 10 issues in the above suit which are as under:
1. Whether the suit has not been properly valued for the RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page3/14 purpose of court fees & jurisdiction and proper court fees has not paid? OPD
2. Whether this court has no pecuniary jurisdiction to try and entertain the present suit? OPD
3. Whether the suit is bad for mis joinder/ non joinder of necessary of parties? OPD
4. Whether the suit is not maintainable in the preset form ? OPD
5. Whether the defendant is a tenant in respect of the suit premises? OPP
6. Whether the tenancy of the defendant has been duly terminated ? OPP
7. Whether the plaintiff is entitled for relief of possession in respect of the suit premises? OPP
8. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
9. Whether the plaintiff is entitled to damages and mesne profit? If yes, at what rate and for what period? OPP
10. Relief.
4. The plaintiff in the trial court examined two witnesses and the defendant has also examined two witnesses before the ld. court below, which later, after appreciating the entire evidence available on record had decreed the suit of the plaintiff.
5. Grounds in Appeal: Aggrieved by the said judgment and decree, the defendant in this appeal has challenged the same on the ground that there was an error in appreciating the oral and documentary evidence. It is also urged that the terms in the agreement at para 21 permitted that the property would be used as RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page4/14 commercial as well as residential purposes which escaped the attention of the ld. court below. It is pleaded that the agreement was executed on behalf of the society which is clear from the rubber stamp impressed. Appellant further says that the evidence of the plaintiff was not corroborated and her testimony is not credit worthy. Much reliance was placed on the documents like water, electricity and telephone bills by the ld. court below ignoring the fact that the premises was leased to the society. The mis-joinder and non-joinder of the parties was not properly appreciated. The non-joinder of the parties had shaken the foundation of the suit. It was unsafe to have held that the society being acquiesced of the matter ought to have got impleaded itself in to the proceedings.
6. Upon notice, the respondent appeared through the counsel.
The trial court records are secured. The same is perused, in the context of arguments heard on either side.
7. Contentions of the parties: The ld. counsel for the appellant Ms. Poonam Lau and Shri Ajay Sharma vehemently argued that the entire edifice of the case of the plaintiff is without any sound foundation based on law in so far as the plaintiff having not made the proper party-the society, as the defendant in the suit. It is argued that the rents were being paid by the society and that a part of the premises is used by the secretary-Rajender Vaid for his residential purposes also. The ld. counsel for the appellants have RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page5/14 urged that attention be given to clause 21 in Ex. DW1/13 i.e. rent agreement dated 21.6.2007. The said clause makes that the tenancy would continue to be used by Bhaimati Dass Group Housing Society Ltd. and by the Secretary-Rajender Vaid as commercial-cum-residential purposes. According to the appellant, the proper tenant ought to have been arraigned is "Bhaimati Dass Group Housing Society Ltd." It is also argued that the appellant being only the honorary secretary of the said society cannot be fastened with the liability of paying the rents personally. It is submitted that such a liability is fastened against the appellant by the impugned decree. The appellant cannot bear the brunt of arrears of rent in personal capacity since it is the society which has taken the premises on rent and further the rents were regularly paid by the society from its funds. The ld. counsel had also argued that court below did not apply its mind to the entire evidence available on record.
8. On the other hand, the ld. counsel Shri R. S. Goswami appearing for the respondent justifies the impugned order. His contentions are that the lease deeds and particularly latest lease agreement recitals are very clear that the lessor is late Madan Lal Sharma who is mentioned as second party-landlord. The first party- tenant as found from the recitals of the lease agreement is Mr. Rajender Kr. Vaid, secretary of Bhaimati Dass Group Housing RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page6/14 Society Ltd. Therefore, the ld. counsel for the respondent submits that there has been no miscarriage of justice in having allowed the suit and decreed it against the defendant in the trial court in the personal capacity since the recitals of the agreement show that the agreement was entered into by the defendant in personal capacity, though described as secretary of Bhaimati Dass Group Housing Society Ltd. He prays for dismissal of the appeal.
9. Issues in this appeal: in the context of the submissions by the contesting parties and after careful perusal of the trial court records and the grounds urged in the appeal, the only issue that arises for determination in this appeal is " whether impugned judgment and decree of the court below is perverse, illegal and is passed without application of judicial mind?.
10. The above issue is being answered with the following reasons. REASONS a. The major contention of the appellant is that the suit filed before the court below is bad for non-joinder of parties. According to him, the proper party to have been sued as a tenant is Bhaimati Dass Group Housing Society Ltd. It is worthy to note the relevant provision of the CPC which deals the mis-joinder and non-joinder of parties in a suit. Order 1 rule 9 of CPC reads as under:
Mis-joinder and non-joinder- No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page7/14 every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
b. In this backdrop of procedural law we have to understand from the facts of the case whether the society by name Bhaimati Dass Group Housing Society Ltd. is a necessary party to the suit to have been sued. The facts of the case are very clear that the demised premises was leased latest by rent deed which is exhibited DW1/13. In the foregoing paragraphs, it is already stated that the tenant to the lease deed is described in the personal capacity. Appellant- Rajender Kr Vaid had entered into agreement in personal capacity though claiming himself as the secretary of Bhaimati Dass Group Housing Society Ltd. He entered as a first party-tenant. No doubt Ex. PW1/13 bears the rubber stamp of the society, the same cannot be said to have the meaning of the society Bhaimati Dass Group Housing Society Ltd., as having entered as a tenant. If the society was the tenant-first party as is now contended by the ld. counsel for the appellant, the lease agreement could have mentioned the name of the tenant as "Bhaimati Dass Group Housing Society Ltd. (represented by its secretary Shri Rajinder Kumar Vaid)". The recitals of the rent deed having described the name of the tenant as Rajinder Kumar Vaid, the appellant now RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page8/14 cannot contend that the society is the tenant. In fact the rent agreement at Ex. DW1/13 clearly establishes that it is in the personal capacity. Society is not the natural person- the society being a juridical entity, natural person who happened to the secretary of the society, could have described the name of the tenant as the society represented by him. He has not done so when he entered into agreement. Just because, he has signed by impressing the rubber stamp, cannot cure the recitals of the agreement. Even at the end of the deed, the rubber stamp is not impressed.
c. Having held that the agreement at Ex. DW1/13 as entered into by the appellant in his personal capacity albeit incidentally as a secretary of the society, this court is not persuaded to hold that the society was the necessary party. Therefore, the non- joinder of the society as a party to the suit cannot defeat the plaint. d. Further more, I have perused the reasoning adopted by the ld. court below on all the issues. Issues no. 1 and 2 dealt with the aspect of pecuniary jurisdiction and the court fee payable. The defendant having admitted Ex. DW1/13 and the termination of the lease and further the defendant having not adduced any evidence to dispel the jurisdiction, now cannot contend that the findings of the trial court as without application of mind. e. It is very pertinent to observe from the pleadings and the RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page9/14 affidavit found on the trial court record, that Ex. DW1/A the affidavit of the defendant ( the appellant herein) in the trial court clearly mentions that he is the "secretary and the authorised representative of Bhaimati Dass Group Housing Society Ltd.". Therefore, the participation of DW1 in the proceedings and filing of the affidavit styling himself as the authorized representative and secretary of the society as clearly admitted by him while describing the deponent-himself at Ex. DW1/A, abundantly repels the contentions of the ld. counsel for the appellant that the society was kept in dark of the proceedings before the ld. court below. Thus, it cannot be said that the impugned judgment which is a product after contest by the appellant both in the capacity of the representative of the society and also in his personal capacity-is opposed to the principles of natural justice. While answering issue no.5, the ld. court below has held that he is a tenant and it did hold rightly so, in the context of DW1 having claimed to be the authorized representative of the society even while filing his affidavit verifying the written statement which this court notes that the deponent declared himself as an authorized representative at the very first appearance while he filed the written statement and secondly while leading the evidence. The documentary evidence produced by the very defendant was showing the name of the consumer of electricity and the water bills as Rajender Kr. Vaid who is the RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page10/14 appellant. If the contention of this appellant that the society was the tenant, the same could have been raised in the name of the society but the documents are otherwise. This is a peculiar case where the personal interest is overlapping as could be gathered from clause 21 of the rent agreement wherein the appellant would use the premises for his residence also apart from running the affairs of the society. The dominant intention as could be gathered from the oral and documentary evidence is clear that the property would be used by the appellant as a residential accommodation also. Though the appellant claimed that the proper person as tenant would be the society, the very rent agreement does not speak so. More over the society having duly contested the suit through its authorized representative as could be held from the description of the person verifying the written statement, it becomes clear that the written statement is filed by the defendant in his individual capacity as well as the authorized representative of the society.
f. The other contention of the appellant is that the society was paying the rents and entire liability of the arrears of the same cannot be fastened upon him as individual liability, cannot be looked into in this appeal. If that is so, the society which was paying the rents can do so even now. The appellant himself is the secretary of the society and is obligated to draw the funds from the RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page11/14 society to honour the decree, since the society was duly contesting the matter. It is made clear that the appellant may draw the funds of the society to clear the arrears.
g. As regards the decree of eviction, I do not find any illegality in view of the latest rulings of our High Court in Sky Land International Pvt. Ltd Vs. Kavita P. Lalwani 191 (2012) DLT 594 wherein it is made clear that even though the notice to terminate the tenancy is not served on the tenant, the mere filing of the suit itself is sufficient notice to evict the tenant.
Unfortunately in this case, the defendant contested the matter by filing the written statement claiming himself as the authorized representative of the society also apart from his individual capacity as well. Even the society cannot contend that the judgment is opposed to the principles of natural justice especially when viewed from the verifying affidavit to the written statement, the affidavit filed towards evidence which is at Ex. DW1/A and particularly Ex. PW1/E, the notice.
h. The rest of the grounds urged in the appeal are not based in a sound logic or based on the provisions of law. It is made clear that the suit of the plaintiff was maintainable against the defendant in the trial court apart from the reasons mentioned in the judgment of the ld. court below, but for the additional reasons which this court has drawn up after looking into the verifying affidavit to the written RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page12/14 statement and the description of the deponent at the affidavit of the appellant in the trial court at Ex. DW1/A. i. It is noteworthy to mention the pithy law laid down in Padam Singh Jain v. Chandra Brothers, AIR 1990 Pat. 95 that when the defendant entered into the lease agreement in his individual capacity and not as a partner of and on behalf of a firm, the firm is not a necessary party to the eviction suit. In the instant case, the rent deed makes it clear that the appellant entered into the lease in an individual capacity.
j. Suffice it to say that this court is not persuaded by the grounds urged in the appeal as tenable and logical. Viewed from any angle, it cannot be said that the impugned judgment and decree of the court below suffers from perversity, illegality and is opposed to the principles of natural justice. It cannot be also said that there was no proper application of judicial mind in arriving at the impugned judgment. Consequently, the following order:
ORDER The appeal stands dismissed.
The judgement and decree in Suit no. 269/2010 dated 30/11/2013 on the files of ld. JSCC/ASCJ, Shahdara, Delhi is hereby affirmed.
There shall be no order as to costs.
Decree be prepared accordingly.
RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page13/14 The Trial Court Record be sent along with a copy of this judgement. Appeal file be consigned to Record Room.
Pronounced in the open court ( A.S. JAYACHANDRA) 16.07.2014 Addl. District Judge-I:
Shahdara District:
KKD Courts Complex:Delhi (This order contains 14 pages) RCA No. 05/2014 Rajinder Vaid Vs. Vinod Kr. Sharma Page14/14