Delhi District Court
Shashi Agnihotri vs Krishan Kumar on 18 January, 2014
Shashi Agnihotri Vs Krishan Kumar
IN THE COURT OF VIPLAV DABAS
CIVIL JUDGE-11 (CENTRAL) : DELHI
Civil Suit No. : 182/13
Unique Case ID No : 02401C0247162009
In the matter of:
1) Smt. Shashi Agnihotri(deceased)
Through her Legal Heirs
i) Sh. Rajesh Agnihotri
ii) Sh. Anoop Agnihotri
iii) Sh. Pankaj Agnihotri
All Sons of Late Smt. Shashi Agnihotri .............. Plaintiffs
iv) Ms. Mani Bala Agnihotri
D/o Late Smt. Shashi Agnihotri
All R/o 801-A, Kaushik Enclave,
Main Road, Burari, Delhi-110084
Versus
Sh. Krishan Kumar
S/o Sh. Jai Chand
Proprietor M/s Laxmi Tent House
R/o 801 & 803, Kausik Enclave,
Nathu Pura 100 Foota Road,
Main Road, Burari,
Delhi-110084 .................... Defendant
Date of institution of the Suit : 06.06.2009
Date on which order was reserved : 18.01.2014
Date of decision : 18.01.2014
SUIT FOR RECOVERY OF POSSESSION AND MESNE PROFITS AS WELL
AS PERPETUAL INJUNCTION
JUDGMENT
1) Present suit was filed in the year 2009 seeking recovery of possession of the leased premises i.e three shops having independent 1/15 Shashi Agnihotri Vs Krishan Kumar shutters forming part of property bearing no. A-801, Kaushik Enclave, Main Road, Burari, Delhi-110084 as shown in red in the site plan alongwith decree for a sum of Rs. 27,000/- towards arrears of rent for the period from 15.11.2008 till 14.05.2009, decree at the aforesaid rate i.e Rs. 4500/ per month w.e.f 15.05.2009 till institution of the suit directing an inquiry under order 20 rule 12 CPC regarding future damages or mesne profits as well as passing a decree thereof from the date of institution of the suit till possession of the suit premises with interest @ 18% per annum from the date of institution of the suit till realization and a decree of permanent injunction restraining the defendant to part with the possession of the leased premises in question to any third party.
2) It is averred in the plaint that the plaintiff is the owner/ landlady of the immovable property i.e three shops having independent shutters forming part of property bearing no. A-801, Kaushik Enclave, Main Road, Burari, Delhi-110084, Kaushik Enclave, Main Road, Burari, Delhi-110084 which were leased out to the defendant by the plaintiff in terms of an agreement dated 15.01.2008 at a lease of Rs. 1500/- per shop totaling to Rs. 4500/- excluding all other charges for a period of eleven months commencing from 15.01.2008 which term has already expired by efflux of time and the occupation of the defendant in respect thereof is that of an illegal occupant, that the defendant is a chronic defaulter in making the payment of lease money to the plaintiff and have neither paid nor tendered the arrears of lease money since 15th November 2008, that the defendant is withholding the legitimate amount of arrears of lease due to the plaintiff as such the defendant is liable to pay interest on the said arrears of rent @ Rs 4500/- per month from 15.11.2008 to 14.05.2009 amounting to Rs. 27,000/- alongwith interest @ 18% per annum. It is further averred that the left with 2/15 Shashi Agnihotri Vs Krishan Kumar no other option, the plaintiff got served a legal notice dated 02.05.2009 thereby terminating the tenancy of defendant, calling upon him to pay the entire arrears of rent and also to vacate and hand over the vacant, peaceful possession of the leased shops within a period of fifteen days. It is further averred that the cause of action firstly arose when the defendant failed to pay the lease since November 2008 and it continued to arose with the expiry of each month when the lease money became due but was not paid by the defendant, that it again arose when the defendant failed to handover the possession of the leased premises despite the legal notice dated 02.05.2009 was served upon the defendant and it lastly arose when the defendant extended threat for parting with possession of the suit premises.
3) It is averred in the written statement filed on behalf of defendant that the plaintiff is hit by the provisions of Section 50 of Delhi Rent Control Act and the jurisdiction of Civil Court is barred, that the plaintiff has not come to this Hon'ble Court with clean hands and has suppressed the material facts and that the suit of the plaintiff is the counter blast to the injunction suit filed by the replying respondent against the plaintiff much prior to the filing of the present suit. It is denied that the tenanted premises was leased out to the defendant by the plaintiff in terms of an agreement dated 15.01.2008 at a lease of Rs. 1500/- per shop totaling to Rs. 4500/- excluding all other charges, that the lease was created for a period of eleven months commencing from 15.01.2008 which term has already expired by efflux of time and the occupation of the defendant in respect thereof is of an illegal occupant. It is submitted that the defendant is a lawful tenant in respect of the shop(tin-shed) comprising in property no. A-801, Kaushik Enclave, Main Road, Burari, Delhi-84 as shown in red colour in the site plan and 3/15 Shashi Agnihotri Vs Krishan Kumar carrying out business of tent house, that the tenanted shop was taken on rent @ Rs. 1500/- per month on 01.01.2008 from the plaintiff and a sum of Rs. 2 lacs was taken by the plaintiff/ her husband Sh. J.P.Agnihotri as Pagri from the defendant. It is denied that the defendant is a chronic defaulter in making the payment of lease money to the plaintiff and has neither paid nor tendered the arrears of lease money to the plaintiff or have neither paid nor tendered the arrears of lease money since 15.11.2008 to date to the plaintiff @ agreed rent of Rs. 4500/-. It is further denied that the notice dated 02.05.2009 has ever been served upon the defendant and that the cause of action ever arose in favour of the plaintiff.
4) In replication filed on behalf of the plaintiff to written statement of defendant, all the contrary contentions of the defendant were denied by the plaintiff and the contents of the plaint were re-affirmed.
5) On the basis of the pleadings of the parties following issues were framed on 02.12.2009 by the Ld. Predecessor Court.
1) Whether the plaintiff is entitled to recover the possession of the suit property as claimed in the plaint? OPP.
2) Whether the rate of rent of the suit property is Rs. 4500/-
per month and not Rs. 1500/- per month? OPP.
3) Whether the plaintiff is entitled to recover the mesne profit from the defendant, if yes at what rate? OPP.
4) Whether the plaintiff is entitled to the decree of
permanent injunction as claimed in the plaint? OPP.
5) Whether the suit of the plaintiff is barred under section 50
of the DRC Act? OPD.
6) Relief.
6) Plaintiff led evidence in order to establish her case and examined
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Shashi Agnihotri Vs Krishan Kumar
herself as PW-1 by filing evidentiary affidavit Ex. P-1 and relied upon the following document i.e Agreement, Site Plan, legal notice, reply to legal notices, UPC, Postal Receipt and AD Card exhibited as Ex. PW-1/1 to Ex. PW-1/8 respectively. The plaintiff also brought witnesses namely PW-2 Sh. Bal Kishan Chauhan, PW-3 Const. Sanjeev Kumar, PW-4 ASI Raj Pal, PW-5 HC Puran Chandra and PW-6 Sh. Rajender Kumar who were also examined, cross examined and discharged. Thereafter, the plaintiff's evidence was closed on recording of statement of Ld. Counsel for plaintiff. The Defendant examined himself as DW-1 by filing his affidavit and was discharged after cross examination. Thereafter, Defendant's evidence was closed on recording of statement of defendant and matter was fixed for final arguments.
7) I have carefully gone through the material available on record and heard the arguments advanced by Ld. Counsel for parties. The issue wise findings are as under:-
Issue No.5 Whether the suit of the plaintiff is barred under section 50 of the DRC Act? OPD.
The issue no.5 is being decided first as the same is related to root of the case. Onus to prove this issue was on the defendant who took the preliminary objection in the written statement that the present suit is barred under section 50 of the Delhi Rent Control Act as the rent of the shop in question was Rs. 1500/- per month which was denied by the plaintiff in the replication stating that the rent was fixed at Rs. 4500/- per month for all the three shops that have been converted into single shop by removing the walls by the defendant with each shop fetching a rent of Rs. 1500/- per month. Plaintiff firmly denied during her cross examination that rent of the 5/15 Shashi Agnihotri Vs Krishan Kumar shop was fixed at Rs. 1500/- per month and that she took a sum of Rs. 2 lacs as Pagri. Defendant deposed during his cross examination that he gave Rs. 2 lacs to the deceased plaintiff as Pagri for less amount of rent which shows that rent of the premises was much higher than Rs. 1500/- at the time of inception of tenancy and that the rent was fixed at Rs. 1500/- only because of the payment of Rs. 2 lacs as Pargi amount. So, the establishment of aspect of payment of Rs. 2 lacs as Pagri amount becomes a sort of condition precedent to believe the plaintiff's version that the rent was Rs. 1500/- per month. In the written statement and evidentiary affidavit, the defendant took the stand that the sum of Rs. 2 lacs was paid to the plaintiff and her husband while the reference to plaintiff's husband is not made in the suggestion put to plaintiff or in the defendant's deposition made in his own cross examination which is a material omission as no reasonable and truthful person can forget the persons whom a huge sum of Rs. 2 lacs was paid by him indicating that the defendant is taking a vague and false plea of payment of Pagri of Rs. 2 lacs thereby falsifying the version that rent was merely Rs. 1500. Furthermore, the defendant admitted that no receipt of Pagri amount was taken by him from the plaintiff, that he has not given any written notice to the plaintiff for giving the receipt of Pagri amount of Rs. 2 lacs and that he has never filed any petition on the issue of receipt of Rs. 2 lacs against the plaintiff till date. The conduct of defendant as reflected from aforesaid deposition that he paid a sum of Rs. 2 lacs perhaps in cash to the plaintiff which is otherwise illegal as per the Income Tax Act and other laws of the land without even taking any receipt from plaintiff who does not seem to be previously familiar with defendant and that neither any legal notice nor any petition has been filed by him against which ought to have been done by an ordinary prudent person despite the fact that his relations with the plaintiff 6/15 Shashi Agnihotri Vs Krishan Kumar have soured as besides the present suit the defendant himself has previously filed a suit against plaintiff seeking injunction from forcible dispossession which was dismissed due to non-appearance of defendant after the Court of Ms. Tyagita Singh directed the defendant to deposit the rent of previous year and month-wise rent of Rs. 4500 for the three shops who did not take bonafide steps for getting the said dismissal set aside thereby reflecting malafide conduct of the defendant which indicate that the defendant does not behave in a reasonable and prudent manner which creates grave doubt on his version and thus falsifies his defence that premises were let out at a reduced rent of Rs. 1500 per month as a sum of Rs.2 lacs was paid to plaintiff towards Pagri amount thereby substantiating the plaintiff's version that rent was Rs. 4500/- per month. It is also admitted by the defendant that the suit premises fall in the land comprised in revenue estate of village Burari. It is admitted by the defendant that village Burari is still a rural village. Defendant did not bring any material on record despite being inquired by the Court on this aspect during final arguments to suggest that the suit premises fall in an urbanized area/ village in respect of which any specific notifications regarding urbanization as well as consequent application of Delhi Rent Control Act has been published in the gazette as required under proviso attached to Section 2 of Delhi Rent Control Act. So, it is material omission on part of defendant which gives rise to adverse inference against defendant's version and thus probablizes that the suit premises are not subject to the jurisdiction of Delhi Rent Control Act. It thus emerges that it can not be said that the suit is barred under section 50 of Delhi Rent Act. This issue is thus decided in favour of plaintiff and against the defendant.7/15
Shashi Agnihotri Vs Krishan Kumar Issue No.1 Whether the plaintiff is entitled to recover the possession of the suit property as claimed in the plaint? OPP.
Issue No.2 Whether the rate of rent of the suit property is Rs. 4500/- per month and not Rs. 1500/- per month? OPP.
Issue No.3 Whether the plaintiff is entitled to recover the mesne profit from the defendant, if yes at what rate? OPP.
Issue No.4 Whether the plaintiff is entitled to the decree of permanent injunction as claimed in the plaint? OPP.
All these issues are being decided together as they are interconnected. Onus to prove these issues was on the plaintiff who deposed in evidentiary affidavit in consonance with plaint that plaintiff is the owner/ landlady of suit property, that the defendant was inducted as tenant in respect of the shops for a total rent of Rs. 4500 with rent @ Rs. 1500/- per shop per month on 15.01.2008 for a period of eleven months in terms of an agreement dated 15.01.2008, the defendant paid a sum of Rs. 4500/- to plaintiff in presence of witness at the time of execution of said agreement, that the defendant is a chronic defaulter in making the payment of lease money to the plaintiff and have neither paid nor tendered the arrears of lease money since 15th November 2008, that the defendant is withholding the legitimate amount of arrears of lease due to the plaintiff as such the defendant is liable to pay interest on the said arrears of rent @ Rs 4500/- per month from 15.11.2008 to 14.05.2009 amounting to Rs. 27,000/- alongwith interest @ 15% per annum. It is further averred that the left with no other option, the plaintiff got served a legal notice dated 8/15 Shashi Agnihotri Vs Krishan Kumar 02.05.2009 thereby terminating the tenancy of defendant, calling upon him to pay the entire arrears of rent and also to vacate and hand over the vacant, peaceful possession of the leased shops within a period of fifteen days. It is further averred that the cause of action firstly arose when the defendant failed to pay the lease since November 2008 and it continued to arose with the expiry of each month when the lease money became due but was not paid by the defendant, that it again arose when the defendant failed to handover the possession of the leased premises despite the legal notice dated 02.05.2009 was served upon the defendant and it lastly arose when the defendant extended threat for parting with possession of the suit premises.
In the written statement defendant admitted the existence of landlady tenant relationship between him and the plaintiff but has denied the execution of any rent agreement, denied that rent of the premises was Rs. 4500/- per month and has submitted that the same was Rs. 1500/- per month as well as that the suit premises comprise of a single shop with three shutters and not three independent shops. Plaintiff firmly denied during her cross examination that the tenancy was incepted orally, that the rent of the shop was Rs. 1500/-, that there is only one big hall right from the inception of tenancy and that there were no three shops at any point of time, that the front of the shops is quite wide and one shutter can not be installed that is why three shutters have been installed in the hall, that she took a sum of Rs. 2 lacs as pagri, that signatures of the defendant on the rent agreement Ex. PW-1/1 are forged signatures, that the rent of the shop was not Rs. 4500/- per month, that the defendant was quite regular in matter of payment of rent and that she wanted to enhance the rent from Rs. 2500/- to Rs. 3000/- per month immediately after few months of tenancy which was not acceptable to tenant. The aforesaid firm denials 9/15 Shashi Agnihotri Vs Krishan Kumar depict that the defendant failed to impeach the plaintiff's version and thus to bring forth his defence. Plaintiff firmly affirmed that the rent agreement bears her signatures at point X, that the defendant removed the common walls of the shops in month of March but does not remember the year whether it was in 2008 or 2009 which has gone unrebutted as no specific suggestion negating the plaintiff's above deposition to the effect that defendant did not remove the common walls as was put amounting to admission of plaintiff's version that initially there were partitions which were removed by defendant. Defendant admitted during his cross examination that pillars are existing as shown in the site plan Ex. PW-1/2 and that the site plan is correct except the partition walls. Existence of pillars and three shutters probablizes the fact that there were three shops initially as the defendant's version regarding the raising of pillars which is an expensive process just for the sake of supporting the iron sheets on the roof which can be supported by other less expensive and less formal methods/ process of construction, does not convince this Court. The plaintiff's deposition that the defendant paid a sum of Rs. 4500/- to the plaintiff at the time of execution of rent agreement has gone unrebutted as no specific suggestion negating the same was put to the plaintiff which amounts to admission of the said deposition by the defendant thereby probablizing that the rent of the premises was Rs. 4500/- per month which was paid in advance as security deposit in terms of the rent agreement, that the tenancy commenced on 15.01.2008 and that the rent agreement was duly executed. No specific suggestion that the rent agreement was not executed was put to the plaintiff which raises the probability that the rent agreement was duly executed. The defendant duly identified the signatures of the plaintiff on the rent agreement but denied that the rent agreement bears his signatures. Mere suggestion that signatures are forged or denial 10/15 Shashi Agnihotri Vs Krishan Kumar of signatures is of no consequence in the present circumstances as the fact whether a signature is in the handwriting of a particular person is such a fact which is in specific knowledge of the person and only that person(herein defendant) can tell as to how the particular signatures are not his signatures or that he signs in a specific manner which is different from the disputed signatures. So, the defendant ought to have brought on record by leading expert's evidence or other independent evidence the fact that he signs in a particular manner which is different from the disputed signatures thereby probablizing that his alleged signatures are forged. It thus emerges from aforesaid discussion as well as observations made on issue no.5 that plaintiff has raised a preponderance of probability showing that the suit premises were let out to the defendant in terms of agreement dated 15.01.2008 for monthly rent of Rs. 4500/- per month and that the rent of the suit premises was Rs. 4500 and not Rs. 1500/-. The defendant got it affirmed by the plaintiff that she had issued legal notice through her advocate to the defendant prior to filing of this case. The defendant admitted during his cross examination that he had received the legal notice Ex. PW-1/5 which thus affirms the plaintiff's version that legal notice regarding recovery of arrears of rent and eviction was duly served upon the defendant. Defendant made a false statement during his cross examination that he replied the said notice as said reply is neither on record not it is averred in the written statement which creates grave doubt about the veracity of defendant's entire version. It is thus clear that the lease had come to an end by efflux of time in terms of the lease agreement and if the same is not treated as termination of the lease the tenancy has been validly terminated by the plaintiff by virtue of the aforesaid legal notice dated 02.05.2009 despite whose service the defendant did not vacate the lease premises and paid the arrears of rent. Even otherwise, in the cases 11/15 Shashi Agnihotri Vs Krishan Kumar like the present one which are not covered under the Delhi Rent Control Act, service of summons of the Court which have been duly served in the present case is treated as notice of termination of tenancy as has been held by the higher courts in catena of judgments. So, the tenancy came to an end after the expiry of the time period as mentioned in the legal notice Ex. PW-1/5 upon which the defendant ceased to be a tenant and continues to occupy the suit premises as an unauthorized occupant. In view of the aforediscussed observations and considering that the plaintiff being landlady and owner of the suit premises is entitled to seek eviction of the defendant who ceased to be a tenant after the service of the said notice, the issue no.1 and 2 as to whether the plaintiff is entitled to recovery of possession of the suit property and whether the rent of the suit property is Rs. 4500/- per month and not Rs. 1500 per month are decided in favour of the plaintiff and against the defendant. Continuing the discussion further regarding the arrears of rent and mesne profits, the defendant did not bring any creditworthy evidence on record to show that he had regularly paid the rent @ Rs. 4500/- per month from 15.11.2008 till date. The specific deposition of plaintiff that the defendant has not paid the rent from 15.11.2008 or tendered the arrears till date has gone unrebutted as no specific suggestion to negate the same was put to the plaintiff amounting to its admission on behalf of defendant. The fact that the defendant did not deposit any amount despite specific orders dated 03.11.2009 to deposit the arrears of rent for previous one year as well as current month-wise rent at the rate of Rs. 4500/- per month passed by Ld. Civil Judge Ms. Tyagita Singh in another case filed by the defendant against the plaintiff prior to this suit and got that suit dismissed in default further substantiate that the defendant is actually in arrears of rent who did not even abide by the orders of the said Court then what to talk of paying or tendering the rent to 12/15 Shashi Agnihotri Vs Krishan Kumar the landlady. In view of the present facts, discussion and failure of the defendant to bring any cogent evidence on record showing that he has paid the rent regularly as well as the consistent testimony of the plaintiff, it is clear that the defendant is in arrears of rent @ Rs. 4500 /- per month from 15.11.2008 till the termination of the tenancy in the month of May 2009 after which the defendant continues to occupy the suit premises as unauthorized occupant making him liable to pay damages or occupational charges from the month of June 2009 till vacation of the premises.
Furthermore, in respect of the issue no.3 as to whether the plaintiff is entitled to mesne profits, the PW-1 has firmly deposed in para 7 of her evidentiary affidavit that after termination of the lease the possession of the defendant in respect of the suit premises is illegal and he has become liable to pay the damages at the market rate prevalent in the locality which is not less than Rs. 10,000/- presently. The aforesaid deposition of the plaintiff has gone unrebutted as no suggestion to negate the same was put by the defendant to the plaintiff amounting to the admission of the same by the defendant. It has already been established as discussed earlier that the tenancy came to an end after expiry of the period as mentioned in the notice Ex. PW1/5 in the month of May 2009 and the defendant continues to occupy the suit property after that month till date as unauthorized occupant which thus entitles the plaintiff to claim mesne profits or unauthorized occupation charges. So, the plaintiff is entitled to recover mesne profits/ damages @ Rs. 10,000/- per month as deposed by the plaintiff but the said rate does not seem reasonable to this Court. Accordingly, considering the rise in the rental value of the properties, this Court is of the view that user charges/ damages @ Rs. 7,000 per month with an increase of 10% per annum in the last paid rent counting the year as starting from first June and ending on 31st May from the month of institution of the suit till the 13/15 Shashi Agnihotri Vs Krishan Kumar vacation of the premises by the defendant will be sufficient to meet the end of justice. Considering the nature of the transaction which is not a purely commercial transaction, this Court is not inclined to grant interest on the arrears of rent on the mesne profits.
As, it stands established that the plaintiff is the landlord and owner of the suit land and being so is entitled to recover possession of the same which the defendant continues to occupy as trespasser after valid termination of lease, the plaintiff is entitled to protect the suit property from creation of third party interest by or on behalf of defendant who has threatened the plaintiff that he would create third party interest as clear from the unrebutted paragraph 10 of the plaintiff's affidavit as otherwise plaintiff's right discussed herein above would be rendered nugatory and there will be multiplicity of litigation which should otherwise be avoided to promote the interest of justice. In view of the aforesaid observation, it is held that the plaintiff is entitled to relief of injunction also whereby the defendants etc are restrained from creating any third party interest in the suit land. So, issue no.4 is decided in favor of the plaintiff and against the defendant.
Issue No.6 Relief In view of the findings on the aforesaid issues, suit of the plaintiff is hereby decreed whereby plaintiff is entitled for recovery of possession of the suit premises alongwith a sum of Rs. 27,000/- towards arrears of rent for the period from 15.11.2008 till 14.05.2009, an amount of Rs. 2250/- for the period from 15.5.2008 till 31.05.2009 @ Rs 4500/- per month towards user charges/damages and Rs. 7,000 per month with an increase of 10% per annum in the last paid rent from the month of institution of the suit till 14/15 Shashi Agnihotri Vs Krishan Kumar the vacation of the premises as well as relief of injunction whereby the defendant etc are restrained from creating any third party interest in the suit land.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (VIPLAV DABAS)
today i.e on 18.01.2014 CJ-11/CENTRAL/DELHI
18.01.2014
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