Delhi District Court
R/O C22 vs Rajinder Singh on 25 November, 2013
IN THE COURT OF SH. SUSHANT CHANGOTRA, CIVIL JUDGE6,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 171/12
Smt. Verinder Kaur
w/o Sh. Kulvinder Singh
R/o C220, Hari Nagar,
Clock Tower, New Delhi110064 .............Plaintiff
Versus
Rajinder Singh
R/o C97, Hari Nagar,
Clock Tower, front portion,
New Delhi110064 ......... Defendant
Date of filing of Suit : 04.12.2009
Date of decision : 25.11.2013
Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 1
JUDGMENT
1. The brief facts of the case of the plaintiff are that she is the owner/landlord of the part of property no. C97, Hari Nagar, Clock Tower, New Delhi measuring about 120 Sq. yard. The defendant Rajender Singh was inducted as tenant in the two rooms, kitchen, bathcumlaterine on the ground floor in the front portion of suit property. The oral agreement was entered between the parties in October, 2004 and the defendant was inducted as tenant at a monthly rent of Rs. 5,000/ p.m. excluding electricity and water charges.
2. The defendant did not pay the rent regularly and was in in arrears of rent amounting to Rs. 35,000/till 01.08.2009. The defendant is also liable to pay interest @ 18% p.a. as the transaction between them was of commercial nature.
Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 2
3. The defendant filed a false and frivolous suit for permanent injunction to deny the timely payment of rent to the plaintiff. The plaintiff terminated the tenancy of the defendant w.e.f. 31.10.2009 by serving a legal notice dt. 23.09.2009. The defendant is liable to pay damages @ Rs. 10,000/ from 31.10.2009 till handing over the peaceful and vacant possession of the premises. Thus, the plaintiff prayed for decree of possession, recovery of arrears of rent amounting to Rs. 35,000/ with interest @ 18% p.a. and for damages @ Rs. 10,000/ from 31.02.2009 till handing over of the possession.
4. The defendant filed written statement and took several preliminary objections. He pleaded that plaintiff has no cause of action. The suit is barred by Section 50 of Delhi Rent Control Act. The rate of rent agreed between the plaintiff and defendant was Rs. 2600/ per month. This Court has no jurisdiction. The plaintiff has not come to the Court with clean hands and has suppressed material facts. He further pleaded that a rent agreement dated 01.10.2004 was Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 3 executed between them and 4 room set situated on the ground floor of the suit property was let out to him @ Rs. 5,000/ per month, but later on two room set situated on the backside portion was vacated and the possession of the same was handed over to the plaintiff and the rate of rent was decreased from Rs. 5,000/ to Rs. 2600/ per month. Brother of defendant Sh. Gurcharan Singh was residing in the backside portion i.e. two room set which was vacated and the rent was decreased from Rs. 5,000/ to Rs. 2600/ per month. The plaintiff has already received rent @ 2600/ per month from the defendant till period January, 2010. The plaintiff had encashed the cheque given on account of rent in the month of December, 2009 and January, 2010. The defendant also tendered the rent @ Rs. 2600/ through money order for the month of February, 2010 but the plaintiff refused to accept the same.
5. He further pleaded that the plaintiff has sold the property to some other person and is not the owner. Lastly, he pleaded that Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 4 suit is not properly valued for the purpose of jurisdiction. On merits, the defendant denied the ownership of plaintiff and also denied the site plan to be correct. He denied the remaining averments of the plaint and reasserted the contentions of preliminary objections. Thus, prayed that the suit be dismissed.
6. The plaintiff filed replication to the written statement and denied the averments of written statement and reasserted the contents of the plaint. However, the plaintiff admitted that plaintiff has received a cheque of Rs. 5200/ and the said cheque was given pursuant to the orders of Court of Sh. Vinod Yadav, Ld. SCJ without prejudice to the contentions of the parties. The plaintiff further pleaded that defendant never demanded the rent receipt and the plaintiff was always ready to issue the rent receipt.
7. From the pleadings, following issues were framed:
1. Whether the suit is not maintainable as being barred by Section 50 of Delhi Rent Control Act and therefore, is filed without Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 5 jurisdiction in the present court? OPD.
2. Whether the plaintiff is entitled for decree of possession in respect of suit property bearing no. C97, Front portion, Hari Nagar, Clock Tower, New Delhi110064? OPP
3. Whether the rate of rent was Rs. 5,000/ per month in respect of suit property? OPP
4. Whether the defendant is liable to pay the arrears of rent amounting to Rs. 35,000/ alongwith interest? OPP
5. Whether the plaintiff is entitled for damages for illegal use and occupation of the suit property? OPD
6. Relief.
8. In order to prove her case, the plaintiff appeared as PW1. She tendered her affidavit Ex. P1 alongwith documents Ex. PW1/1 to Ex. PW1/5. Plaintiff closed PE on 31.10.2011.On the other hand, defendant also appeared as DW1 and tendered his affidavit Ex. DW1/A alongwith documents Ex. DW1/1 to Ex. DW1/20. The Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 6 defendant closed his DE on 09.09.2013.
9. I have heard the arguments of the counsel for the parties. The counsel for plaintiff argued that the relationship of landlord and tenant is admitted. The defendant has admitted that he was inducted as tenant @ Rs. 5,000/ p.m., but took a plea that he subsequently vacated two rooms in the back portion and the rent was reduced to Rs. 2600/ p.m. The defendant pleaded that his brother vacated the premises, but he did not mention the date, month or year when the premises was vacated. The defendant relied upon copy of rent note Ex. DW1/1 which has not been proved. The copy of that rent note shows that tenancy was only between the plaintiff and the defendant and his brother had no relation with the suit property. The said rent note was neither notarized nor registered. It contains an averment that it was only for three months and the defendant did not produce the original. He did not produce the returns submitted to his employer for showing the amount of rent he had paid. Therefore, Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 7 adverse inference has to be taken against the defendant.
10. He further argued that defendant in his cross examination stated that he did not make the payment of rent @ 2600/ per month. He further argued that defendant admits received the legal notice issued by the plaintiff vide which his tenancy was terminated. The defendant did not pay the rent between April to August, 2009. Thus, prayed that the suit may be decreed.
11. On the other hand, counsel for defendant vehemently argued that the plaintiff has failed to prove her case. The plaintiff admitted that she had received a cheque of Rs. 5200/ for payment of rent for the month of December, 2009 and January, 2010. There is no evidence that it was without prejudice to her rights. The notice u/o 12 Rule 8 of CPC was duly served upon the plaintiff and her counsel to which they did not reply. The plaintiff admitted that the address mentioned on the notice was her correct address and the address of her counsel was also correct as per address mentioned in his Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 8 vakalatnama. The plaintiff also admitted that she had executed a written agreement with another tenant namely Sh. Amarjit Singh who was inducted in the back portion of the premises and also stated that the original rent note qua that tenancy was with her. She also stated that she may have purchased the affidavit of above said rent note with Sh. Amarjit Singh from ITO. The perusal of the stamp note Ex. DW1/1 shows that it was purchased from stamp vendor near ITO. The plaintiff also admitted that she was posted in ITO in the year 2004. The plaintiff also stated that on 12.09.2008, she had inducted a tenant on the backside portion having same area @ Rs. 3850/ p.m. Thus, the rent of the same identical portion of the same property could not have been Rs. 5,000/ in the year 2004. The plaintiff being government employee must be filing returns showing her income from rent, but she has concealed the said document which also point to the direction that the rent was Rs. 2600/ p.m. He lastly argued that in the evidence by way of affidavit of DW1, the date when the Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 9 back portion was vacated has been mentioned as 31.08.2007. The perusal of Ex. DW2/1 i.e. inspection report of MCD in the year 1991 shows that the suit property consisted of two rooms in the front portion and similar two rooms in the back portion. Thus, the averments of plaintiff that she had constructed the rooms in back portion subsequently stands disproved. Thus, argued that the suit be dismissed as it is barred by Section 50 of Delhi Rent Control Act.
12. In rebuttal, the counsel for plaintiff further added that as per the statement given in the previous case proved on record by the defendant as Ex. DW1/2, Ex. DW1/3 and Ex. DW1/4, the admitted rent of Rs. 5200/ was accepted without prejudice to the rights and contentions of plaintiff. He further argued that perusal of record of MCD Ex. DW2/1 shows that there was no kitchen or toilet in the back portion. Therefore, brother of plaintiff could not have resided in it separately. The entire story is concocted and the suit may be decreed.
Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 10
13. I have considered the arguments and gone through the evidence on record very carefully. My issuewise findings are as follows:
ISSUES NO. 1,2 and 3
14. Onus to prove issues no. 2 and 3 was on the plaintiff. Whereas, the onus to prove issue no. 1 was placed on the defendant. The initial burden to prove her case rested on the plaintiff which included the burden to prove that the suit is maintainable and the rent is Rs. 5,000/ as averred in the plaint. The initial burden included the onus to prove that the rate of rent was less than Rs. 3500/ per month. Thereafter, the onus was to shift on the defendant to prove that the civil suit is not maintainable. Since these issues are interconnected , therefore, I will take up the discussion of all these issues together.
15. The case of the plaintiff is that defendant was inducted as a tenant in two room set consisting of two rooms, kitchen and bathroom @ Rs. 5000/ p.m. in October, 2004 by virtue of oral Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 11 agreement. The rent receipts were not issued as the defendant never asked for the same. On the other hand, the defendant has denied the said fact and pleaded that the tenancy was reduced into a written agreement dated 01.10.2004 and he was inducted as tenant in the four room set and thereafter, he vacated two rooms and the rent was reduced to Rs. 2600/ p.m.
16. In order to prove her case, the plaintiff has supported her case by leading oral evidence in this respect. On the other hand, the defendant not only deposed orally but also tendered the rent agreement Ex. DW1/1 after taking permission for leading secondary evidence given vide order dated 24.01.2012. He also proved the notice issued u/o 12 Rule 8 of CPC as Ex. DW1/13 and the postal envelope Ex. DW1/6 and postal receipts Ex. DW1/14 and Ex. DW1/15 respectively and the acknowledgments of proof of delivery as Ex. DW1/17 and Ex. DW1/18 respectively.
17. The plaintiff in her cross examination admitted that her Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 12 address and the address of her counsel was correctly mentioned. The perusal of postal envelope Ex. PW1/16 shows that the plaintiff had refused to accept the said notice. Even as per Section 27 of General Clause Act, the notice issued to the plaintiff and her counsel is deemed to have been served as it was issued on the correct address and in usual course of business.
18. In Alva Aluminum Ltd, Bangkok vs. Gabriel India Ltd, 2011(1) SCC 167, the Hon'ble Apex Court has clearly held that, " Heavy onus lies on the party who alleges fraud". The plaintiff has merely stated in her evidence that the rent note Ex. DW1/1 is a forged document. She has not taken any steps to prove that her signatures on the said rent note are forged and fabricated. She did not make a complaint to any official to the effect that the said rent agreement is forged. Mere bald assertion is not sufficient to prove the allegations of forgery.
19. The plaintiff has pleaded that the said rent note is forged Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 13 as the same was not executed by her. The plaintiff did not reply to the notice but has simply relied on the averment that no such written agreement was executed so the original is not with her. It has already been proved that the plaintiff has failed to prove the allegation of forgery.
20. The plaintiff in her cross examination admitted that she has retained the original written agreement that was entered with the tenant inducted in the back portion subsequently. So, there is all the more reason to believe the assertion of defendant that the plaintiff being a landlady had retained the original of rent note EX. DW1/1. Thus, the defendant has proved to the preponderence of probability that the original rent note was with plaintiff which she did not produced. Thus, it has been proved that the rent note Ex. DW1/1 was executed between the parties at the time of the creation of tenancy.
21. The argument that the brother of the defendant could not have lived separately in the back portion as there was no latrine or Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 14 kitchen is not supported by any cogent evidence on record. In the report of assessment of MCD proved as Ex. DW2/1, there is no mention of any kitchen, but the plaintiff in her cross examination stated that she inducted one Sh. Amarjit Singh as tenant in the back portion in the year 2008 and even before that another tenant was inducted by her in the said portion. No person could have resided separately without the basic amenities such as kitchen and latrine in the back portion. The plaintiff has not specifically stated as to when she had constructed the kitchen and bathroom in the premises. Thus, this argument falls flat in view of the statement of plaintiff given in her cross examination as well as in view of rent note Ex. DW1/1.
22. In the rent note Ex. DW1/1, it is mentioned that at the time of creation of tenancy the defendant was inducted as tenant in four room set on 01.10.2004 instead of two rooms as alleged by the plaintiff. The case of the plaintiff is that defendant was never in possession of two rooms in the back portion. Therefore, it can be Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 15 safely concluded that the defendant had vacated two rooms in the back portion of the premises.
23. In such circumstances the version of the defendant that the rate of rent was reduced to Rs. 2600/ per month cannot be discounted especially when the case of plaintiff has been found false in that regard.
24. It is further necessary to note that the plaintiff in her cross examination admitted that she had inducted Sh. Amarjit Singh as a tenant in the back portion of the premises on 12.09.2008 @ 3850/ p.m. She has further admitted that the area of the front portion and the back portion is identical being 60 sq. yard respectively. She also admitted that the there are two rooms in front portion and two rooms in the back portion respectively. It is a settled proposition of law that the court can take judicial notice of the increasing rents. Though the portion in possession of the plaintiff is towards the front side, but the rental value of the same same still could not have been Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 16 more than the rental value of the same number of rooms in the same property four years ago. Thus, the averments of the plaintiff that rate of rent was Rs. 5000/ p.m. in October, 2004 for the two rooms in possession of defendant is not believable.
25. It is further necessary to mention that admittedly the defendant gave a cheque of Rs. 5200/ towards the rent for the month of December, 2009 and January, 2010. It is also admitted that the same was encashed in the account of plaintiff. Though, in replication the plaintiff pleaded that she had accepted the cheque without prejudice to her rights and contentions but she has not mentioned in her affidavit that she accepted the rent of two months i.e. Rs. 5200/ without prejudice to her rights. Even the statement of the present counsel for plaintiff as well as the present defendant recorded in a previously instituted suit for injunction proved as EX. DW1/3, shows that the plaintiff did not accept the said rent by making a reservation that she was accepting it as a part rent or without prejudice to her Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 17 rights and contentions. Hence, the plaintiff has failed to prove that she accepted the rent under reservation as mentioned above. In absence thereof it has to concluded that the plaintiff accepted the rent of the premises to be Rs. 2600/ p.m.
26. In his cross examination, the defendant has stated that he did not make the payment of rent @ 2600/ p.m. but the evidence of defendant has to be read as a whole. Immediately before the said statement, the questions were asked to the defendant about the payment of rent paid earlier by way of cheque. There is an admission of plaintiff herself with regard to the fact that she accepted the rent @ 2600/ p.m. Even otherwise, the fact that defendant did not make the payment of rent @ 2600/ p.m. does not by any stretch of imagination leads to a conclusion that the rate of rent was Rs. 5,000/ p.m. or was more than Rs. 2600/ p.m.
27. In view of the aforesaid discussion it has to be concluded that the plaintiff' could not lead any evidence to show that the rate of Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 18 rent on the date of filing of the suit was Rs. 5000/ p.m. The plaintiff did not have any documentary evidence to substantiate the said version. On the other hand, defendant has successfully proved that the rate of rent of four room set in October, 2004 was Rs. 5,000/ per month and it was subsequently reduced to Rs. 2600/ per month.
28. According to Section 3 (c) of DRC Act, the DRC Act does not apply to the premises whose monthly rent exceeds Rs. 3500/ Since the plaintiff has failed to prove that the rate of rent was Rs. 3500/ or more and rather it has been proved that the rate of rent was Rs. 2600/ p.m. Thus, the defendant is a tenant as per Delhi Rent Control Act and the provisions of said Act apply to him. Therefore, the jurisdiction of civil court is barred by Section 50 of DRC Act. Hence, all these issues are decided against the plaintiff and in favour of the defendant.
ISSUE NO. 4
29. Onus to prove this issue was on the plaintiff. The Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 19 plaintiff has claimed the recovery of Rs. 35000/ on account of arrears of rent @ Rs. 5000/ p.m. w.e.f. 01.04.09 till 31.10.2010. The plaintiff has relied on the fact that the rate of rent was Rs. 5000/ p.m. However, in issues no. 1, 2 and 3 it has already been held that the rate of rent was Rs. 2600/ p.m.
30. The plaintiff contended that the defendant did not pay the rent to her from April to August, 2009 and thereafter she issued a notice It is necessary to note that the plaintiff herself admitted that she did not issue rent receipt. Her oral evidence has been controverted by the oral testimony of defendant who stated that he has paid the rent for the said months @ 2600/ p.m. Since there could not be any documentary evidence, therefore, the oral testimony of the plaintiff met denial by way of oral testimony of defendant. Therefore, the plaintiff has failed to prove that rent for the month of April to August, 09 was not paid.
31. The defendant has pleaded and deposed that he sent the Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 20 rent through money order to the plaintiff but she did not accept the rent. The defendant also proved the challan bearing no. 112 dt. 11.11.2009 whereby he deposited the rent @ 2600/ p.m. for the month of September, 09 to November, 09. His testimony that the money was lying deposited in treasury has not been challenged. Thus, the defendant tendered the said rent as per law and it was for the plaintiff to recover the same from the Court. Hence, the defendant cannot be made liable to pay the amount of rent which he has already deposited. Thus, the plaintiff has failed to prove this issue. Accordingly, this issue is also decided against the plaintiff and in favour of defendant.
ISSUE NO. 5
32. In issues no. 1,2 and 3 it has been held that defendant was statutory tenant and his possession is protected under the Delhi Rent Control Act. He cannot be dispossessed as the tenancy was not a month to month tenancy which could be terminated by serving a Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 21 notice as contempleted u/s 106 of Transfer of Property Act. The defendant is not a trespasser in the suit premises. Accordingly, the plaintiff has failed to prove that she is entitled to damages from the defendant. Hence, this issue is also decided against the plaintiff and in favour of the defendant.
Relief
33. In view of the findings given on the above discussed issues, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared. The file be consigned to record room after due compliance.
Pronounced in the open court (Sushant Changotra)
On 25.11.2013 Civil Judge06 (West),Delhi.
Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 22
CS No 171/12
25.11.2013
Present: Plaintiff with counsel Sh. Dev Raj, Advocate.
Defendant with counsel Sh. P.K. Singhal, Advocate. Final arguments heard.
Put up for orders at 04:00 P.M. (Sushant Changotra) Civil Judge06 (West), Delhi 25.11.2013 AT 04:00 P.M. Present: Plaintiff with proxy counsel.
Proxy counsel for defendant.
Vide separate judgment of even date, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared. The file be consigned to record room after due compliance.
(Sushant Changotra) Civil Judge06 (West), Delhi 25.11.2013 Smt. Verinder Kaur Vs Rajinder Singh Cs No. 171/12 23