Delhi District Court
Ashish Agarwal vs Mr. R. L. Bhuchar on 17 November, 2011
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IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOM COURTS: DELHI
Suit No. 485/10
Ashish Agarwal
S/o Sh. P. C. Gupta
R/o 503, Ashirwad Enclave,
Plot no. 104, I. P. Extension,
Delhi92. .....Plaintiff
Vs.
Mr. R. L. Bhuchar
S/o Late Sh. B. R. Bhuchar
Lease premises no. 2913, Lower Ground Floor,
Property no. E57,
West Vinod Nagar, I. P. Extension,
Delhi92. .....Defendant
Judgment
1 This is suit for possession, arrears of rent and mesne
profits filed by the plaintiff against the defendant. Briefly stated the
facts of the case are that the plaintiff is th owner of shop bearing no.
LG13, in property no. E57, West Vinod Nagar, Delhi92. It is stated
in the plaint that the plaintiff and defendant had entered into a
registered lease agreement for 22 months, on 23.09.02. The lease
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was initially for the period of 22 months w.e.f. 01.10.02. Thereafter the
lease period was extended mutually from time to time and it was
finally extended up to 30.04.10. It is further submitted that the
defendant had issued a cheque bearing no. 064916, dated 25.04.10
for Rs.3,700/ towards monthly lease amount i.e. for the month of
April, 2010 but the same was received back dishonoured with the
remarks "signature differ".
2 It is further stated in the plaint that the plaintiff, on
29.04.10, orally informed the defendant about dishonouring of cheque
and terminated the tenancy w.e.f. 01.05.10, but till date the defendant
failed to handover the peaceful and vacant possession of the leased
premises. It is submitted that the defendant is in illegal and
unauthorized possession of the leased premises after termination of
tenancy w.e.f. 01.05.10. It is submitted that the lease period had
expired on 30.04.10 and after that the plaintiff had sent a legal notice
dated 11.05.10 to the defendant calling upon him to hand over the
vacant and peaceful possession of the leased premises and claimed
damages @ Rs.200/ per day w.e.f. 01.05.10. But the said notice was
received back due to inadvertent mentioning of address as E257
instead of E57. Thereafter a fresh notice was sent on 21.05.10 to the
defendant which was duly served upon the defendant and replied by
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the defendant along with cheque of Rs.7,400/ which was not got
encashed by the plaintiff. The defendant has not vacated the suit
premises and not paid the rent since 01.05.10. Hence, the present
suit is filed by the plaintiff against the defendant.
3 After service defendant appeared and filed WS. It is
submitted that the plaintiff has mixed up two tenancies in one. It is
submitted that the plaintiff had not asked for vacating the premises
after the expiry of lease period i.e. 22 months. It is submitted that his
premises is lying vacant and other portions were equally vacant, so
the plaintiff did not want to part with Rs.7,000/, lying with him as
security. It is stated in the WS that the new oral tenancy was created
which was perpetual tenancy. It is stated in the WS that the plaintiff
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has always accepted rent paid by cheque month by month after 31 ,
July, 2004 till date. It is stated in the WS that the plaintiff has not
served any legal notice under U/Sec.106 of the T. P. Act upon the
defendant. It is stated in the WS that the Lease deed is liable to be
impounded as requisite stamp duty has not been paid. It is also
stated in the WS that the suit is not properly valued for the purpose of
court fees and jurisdiction.
While reply on merits the defendant has admitted that
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plaintiff is his landlord. The defendant has admitted the dishonour of
one cheque of Rs.3,700/ as the defendant's wife Smt. Subash
Bhucher inadvertently issued the cheque from the cheque book of her
husband and put her signatures over the cheque. However, the
defendant was ready to pay the cheque amount. It is submitted that
initially the suit property was let out @ Rs.3,500/ per month and the
suit is barred U/Sec.50 of DRC Act, 1958. The other allegations
levelled against the defendant by the plaintiff in the plaint have been
denied. On the basis of these grounds the defendant sought
dismissal of the present suit.
4 Replication to the WS of defendant filed by the plaintiff in
which plaintiff has denied the averments of defendant stated in the
WS and reiterated and reaffirmed the contents of the plaint.
5 After completion of pleadings following issues were framed
vide order dated 13.01.11:
1. Whether plaintiff is entitled to the decree of possession
as prayed for? OPP.
2. Whether plaintiff is entitled to recovery of arrears of rent
as prayed for? OPP.
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3. Whether plaintiff is entitled to mesne profits/damages
as prayed for? OPP.
4. Whether the present suit has not been valued property
for the purpose of court fees and jurisdiction.
5. Relief.
6 The plaintiff has examined himself as PW1. The defendant
has also examined himself as DW1.
7 I have heard the Ld. Counsel for parties and give my
thoughtful consideration to the submissions made by them. I also
gone through the written arguments of the parties and judgments
relied by the parties. I also perused the record. My issue wise
findings is as under:
ISSUE NO. 1
Whether plaintiff is entitled to the decree of possession as
prayed for? OPP.
The onus to prove this issue is on plaintiff. To
adjudicate the present issue, three points has to be looked into by this
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Court. Firstly, whether there is relationship between the plaintiff and
defendant, of landlord and tenant. Secondly, the rate of rent is above
Rs.3,500/ per month. Thirdly, the legal notice has been served upon
the defendant to call upon him to vacate the suit premises.
Point 1: The relationship as landlord and tenant between the
plaintiff and defendant is admitted.
Point 2: The rate of rent is also admitted as Rs.3,700/ per
month, as document Ex.PW1/F, a cheque of Rs.7,400/, was sent by
the defendant along with reply Ex.PW1/G, being the rent of two
months. So, on the date of filing of the present suit the rent of the suit
premises was Rs.3,700/ per month. The suit does not falls within the
ambit of DRC Act.
Point 3: The third point which has to be looked into by this Court
is whether the legal notice was served upon the defendant or not. The
plaintiff has placed on record two legal notices, dated 11.05.10 and
dated 21.05.10, exhibited as PW1/D and Ex.PW1/E, respectively. The
defendant has admitted the receiving of notice dated 21.05.10,
Ex.PW1/E and further admitted that same was duly replied by him
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through Ex.PW1/G. The Ld. Counsel for defendant argued that the
plaintiff has relied upon the lease agreement Ex.PW1/A but he is not
honouring the terms and conditions of the lease deed. And further
argued that the plaintiff has mixed up two tenancies in one. The
argument of Ld. Counsel for defendant is that the first tenancy was
from 01.10.02 to 31.07.04 and the second tenancy starts with oral
agreement after 31.07.07. I am disagree with the written submissions
of the defendant. Once the lease deed has expired by efflux of time
and no written lease has be entered into thereafter. The tenancy is
considered to be on month to month basis. The written lease
perished with the expiry of lease deed on 31.07.04 and thereafter the
tenancy was on month to month basis. Reliance can be placed upon
the judgment of The Hon. High Court in case titled M/s National
Textile Corporation Ltd. & Ors. Vs. Ashval Wadhera ILR (2009) II,
in which it has been observed that the terms of the agreement
perished with the termination of the lease deed or by efflux of time.
The registered lease deed Ex.PW1/A has come to an end by efflux of
time on 31.07.04. Then the submission of Ld. Counsel for defendant
that the oral lease deed was extended in perpetuity is not sustainable.
Even otherwise, if the lease deed is not registered then the lease has
to be considered on month to month basis. As held by The Hon. High
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Court in case tilted as M/s Jeevan Desal and Electrical Limited Vs.
M/s. Jasbir Singh Chidha (HUF) & Ors. RFA no. 179/2011 decided
on 25.03.11 that "in law either there is tenancy for a specific period in
terms of a duly registered lease deed, and in which case the tenant
would have protection for the period of lease or if there is no
registered lease deed for the lease premises then the tenancy will be
on month to month basis." So, I am of the opinion that after 31.07.04
the tenancy was on the month to month basis. The arguments of Ld.
Counsel for defendant are misconceived as the plaintiff has mixed up
two tenancies. Even otherwise, the Hon. Supreme Court in case titled
as C. Albert Morris Vs. C. Chandrashekaran and Ors. (2006)1
SCC 228 has observed that the acceptance of rent did not renew the
lease so as to confer on the erstwhile tenant the status of a tenant or
a right to possession. The Ld. Counsel for defendant further relied
upon the judgment titled as Kanta Manocha Vs. Hindustan
Newspaper Corporation, 1998(5) AD (Delhi) 486 and Bhupinder
Singh and Ors. Vs. State Bank of India, 2011 (5) AD (Delhi) 89. I
have gone through both the judgments carefully. Both the judgments
laid down that a notice U/Sec.106 of T. P. Act has to be given to the
tenant so that he can know that the landlord did not want him tenant
any further more. First of all, the notice dated 21.05.10 has been
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issued by the plaintiff to the defendant, which is admitted to be
received and duly replied. There may be some discrepancies in the
notice but these are not fatal to the case of the plaintiff. Even
otherwise the Hon. Supreme Court of India in case titled as M/s
Nopany Investment P. Ltd., Vs. Santokh Singh (HUF), 2008 (1)
RCR (Civil) 270 has observed that "in any view of the matter, it is well
settled that filing of an eviction suit under the general law itself is a
notice to quit on the tenant. Therefore, we have no hesitation to hold
that no notice to quit was necessary U/Sec.106 of the Transfer of
Property Act in order to enable the respondent to get a decree of
eviction against the Appellant." So, I am of the view, as I have discussed above, the plaintiff has proved successfully that notice to quite was served upon th the defendant.
The plaintiff is entitled for possession of the suit property.
ISSUE NO. 2
Whether plaintiff is entitled to recovery of arrears of rent as prayed for? OPP.
The onus to prove this issue is on plaintiff. The
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defendant has admitted the rent of two months as due at the rate of Rs.3,700/ per month. The admission has been come on record through document Ex.PW1/G. The issue is decided in favour of plaintiff and against the defendant.
ISSUE NO. 3
Whether plaintiff is entitled to mesne profits/damages as prayed for? OPP.
The onus to prove this issues is on plaintiff. The onus to prove this issue is on plaintiff. The admitted rent of the suit premises is Rs.3,700/ per month as on 31.04.10. The legal notice Ex.PW1/E was duly served upon the defendant but defendant has remained in the suit property without any just cause. Which forced the plaintiff to file the present petition. The plaintiff has spent a considerable time as well as money to prosecute the present suit. The plaintiff has claimed Rs.200/ per day as damages/mesne profit. The suit property is a commercial property which situates within the area of west Vinod Nagar, opposite Tarang Apartment, Patpatganj, Delhi92. The PW1 has deposed in examinationinchief that he is entitled for Rs.200/ per day as compensation of mesne profit. The Suit no. 485/10 10 of 12 11 defendant has not crossexamined the witness on this fact. Even no suggestion has been put to the witness that plaintiff is not entitled to the damages @ Rs.200/ per day. I am of the view, in the facts and circumstances of the case and evidence produced on record, it is just and fair on the part of plaintiff to claim damages @ Rs.6,000/ per month of the suit property as the suit property is commercial in nature and situates in area west Vinod Nagar, opposite Tarang Apartment, Patpatganj, Delhi92. So, plaintiff is awarded Rs.200/ per day as damages w.e.f. 01.05.10 till the possession is handed over to the plaintiff by the defendant. The issue no. 3 is decided in favour of plaintiff and against the defendant.
ISSUE NO. 4
Whether the present suit has not been valued properly for the purpose of court fees and jurisdiction.
The issue is legal issue. The defendant has took the objection that the plaintiff has not valued the suit property for the purpose of court fees and jurisdiction. The suit has to be valued for the purpose of court fees and jurisdiction as per Sec.7(3)(XI) Court of Fee Act, 1870. The plaintiff has to valued the suit on the basis of rent Suit no. 485/10 11 of 12 12 of 12 months. The plaintiff has valued the suit for the purpose of eviction on Rs.44,400/ which is the total of rent of 12 months. The plaintiff has further valued separately Rs.7,400/ as arrears of rent and paid Court fees on the same. The court fee on the mesne profit has to be paid by the plaintiff after decision of the case. I have perused the file. The plaintiff has correctly valued the suit for the purpose of Court fees and jurisdiction. The issue is disposed of accordingly. RELIEF In view of my issues wise discussions suit of the plaintiff is decreed with cost. Plaintiff is entitled to get possession of property bearing shop no. G13, Ground Floor, property no. E57, West Vinod Nagar, I. P. Extension, Patparganj, Delhi. The plaintiff is also entitled to the decree of Rs.7,400/ being the rent for the month of April & May, 2010. The plaintiff is awarded Rs.200/ per day as damages w.e.f. 01.05.10 till the possession is handed over to the plaintiff by the defendant. Set off of Rs. 7,000/ be given to the defendant. Decree sheet be prepared after due compliance.
File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
today i.e 17.11.11) JSCC/ASCJ/GJ(East)
KKD COURTS
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Suit No. 485/10
16.11.11
Present: Counsel for plaintiff.
Counsel for defendant.
Final arguments heard. Written submissions filed by the plaintiff. Copy supplied.
Put up for order on 17.11.11. Defendant is at liberty to file written submission, if any.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/16.11.11
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Suit no. 485/10
17.11.11
Present: None for plaintiff.
Defendant in person.
Written submissions filed by the defendant.
Put up for order at 4.00 p.m. (Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/17.11.11 At 4.00 p.m. Present: Counsel for plaintiff.
Defendant in person.
Vide separate judgment, the suit of the plaintiff decreed with cost. Plaintiff is entitled to get possession of property bearing shop no. G13, Ground Floor, property no. E57, West Vinod Nagar, I. P. Extension, Patparganj, Delhi. The plaintiff is also entitled to the decree of Rs.7,400/ being the rent for the month of April & May, 2010. The plaintiff is awarded Rs.200/ per day as damages w.e.f. 01.05.10 till the possession is handed over to the plaintiff by the defendant. Set off of Rs. 7,000/ be given to the defendant. Decree sheet be prepared after due compliance.
File be consigned to Record Room.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/17.11.11
Suit no. 485/10 14 of 12