Delhi District Court
Suraj Pal Vohra vs ) Krishan Kumar Gauba on 30 August, 2011
In the Court of Dr. Rakesh Kumar: Commercial Civil Judge of
North Delhi District at Tis Hazari Courts, Delhi
Suit No : 181/04
Unique ID No: 11874
In the matter of :
Suraj Pal Vohra
S/o late Ascharaj Lal Vohra
R/o B1/95, New Moti Nagar,
New Delhi110015 ......Plaintiff
V E R S U S
1.) Krishan Kumar Gauba,
S/o Charan Dass
R/o D104, Naraina Industrial Area,
PhaseI, New Delhi.
2.) Tirlochan Singh
S/o Hari Singh
R/o 15/23, Moti Nagar, New Delhi. .....Defendants
Date of institution : 19.08.2004
Reserved for Judgment: 29.08.2011
Date of decision : 30.08.2011
Suit for recovery
J U D G M E N T
1. This is a suit for recovery of Rs.19,672.50 (Rupees Nineteen Thousand Six Hundred Seventy Two and Fifty Paise Only) along with costs, pendente lite and future interest.
2. Facts are that the plaintiff being owner/landlord of a shop (Private No.1) in property No.B1/95, New Moti Nagar, New Delhi, let out the same to the defendant No.1 on 8 th April 1994 vide a written rent note, duly signed by the plaintiff and the defendant Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 1/12 no.1 on a monthly rent of Rs.600/ per month exclusive of water and electricity charges; that the tenancy was agreed for 11 months but was a monthly tenancy; that the defendant no.1 did not vacate the premises after 11 months and continued using the shop; that the defendant no.1 also in a secret manner sublet or otherwise parted with the possession of the shop in question to the defendant no.2; that the defendant no.1 also stopped making payment of rent to the plaintiff since March 1997; that the plaintiff filed an eviction petition against the defendants; that during the proceedings learned ARC vide order dated 11.03.2002, passed an order under Section 15(1) DRC Act against the defendant no.1, directing him to pay the plaintiff rent for a period of three years prior to filing of petition and for period after i.e. from 26.05.98 at the rate of Rs.600/ p.m., to the plaintiff within one month of the date of order; that the defendant no.1 did not comply with the said order and abstained himself from the proceedings and was proceeded ex parte; that vide judgment dated 14.01.2003, the learned ARC, Delhi passed an eviction order against the defendants due to nonpayment of rent and sub letting; that the plaintiff got the possession of shop from the possession of the defendant no.2 on 08.03.2004, but none of the defendants paid any arrears of rent to him since March, 1997; that as per law of limitation the plaintiff can claim rent for the last three years so the plaintiff is filing the present suit for the Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 2/12 recovery of rent which falls within the period of limitation, hence the present suit.
3. The defendant No.1 contested the present suit by filing written statement of his defence wherein it is contended by the defendant that he had vacated the tenanted premises on or before the period of agreement i.e. March, 1995 so no arrear of rent is due on the answering defendant; that the answering defendant has paid the rent as per the rent agreement till he had remained in possession of the shop and after March, 1995 the answering defendant has no concern and relation with the plaintiff.
4. It is denied that the defendant no.1 did not vacate the premises after 11 months and continued using the shop. It is also denied that the defendant no.1 also in a secret manner sublet or otherwise parted with the possession of the shop in question to the defendant no.2. It is also denied that the defendant no.1 also stopped making payment of rent to the plaintiff since March 1997. Other allegations are denied and disputed by the defendant and prayed for dismissal of present suit.
5. The defendant No.2 contested the present suit by filing written statement of his defence wherein took preliminary objections to the effect that the plaintiff has no locus standi to file the present suit; that the suit is without any cause of action.
6. In reply on merits, it is contended by the defendant No.2 Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 3/12 that the shop in question was purchased in the month of March, 1995 by the answering defendant from the plaintiff by paying Rs. 20,000/ for the total sale consideration; that when the answering defendant purchased the shop in question in March, 1995 then there is no question of payment of rent by the defendant No.1.
7. It is denied that the defendant no.1 in a secret manner sublet or otherwise parted with the possession of the shop in question to the defendant no.2. It is also denied that the defendant no.1 also stopped making payment of rent to the plaintiff since March 1997. It is also denied that the answering defendant did not pay any arrears of rent to the plaintiff. Other allegations are denied and disputed by the defendant and prayed for dismissal of present suit.
8. From the pleadings of the parties following issues for trial were framed by my Learned Predecessor on 19.01.2005, namely:
1. Whether the plaintiff is entitled for a decree of sum of Rs.19,672.50 as claimed for ? OPP
2. Whether the plaintiff is entitled for future interest @ 15% as prayed for ? OPP
3. Whether there is no arrear of rent as against defendant no.1 as he had vacated the tenanted premises before March 1995 as pleaded in the preliminary objections ? OPD
4. Whether the plaintiff has played any fraud for getting the eviction orders ? OPD1.
5. Whether the suit of the plaintiff is without cause of action as against defendant no.2, in view of the facts as pleaded in preliminary objection no.6 ? OPD2 Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 4/12
6. Whether plaintiff has encroached upon the area and has carried out any unauthorised construction as pleaded in the preliminary objection no.7, if so to what effect ? OPD2
7. Relief.
9. The plaintiff examined two witnesses. PW Pawan Kumar Vohra tendered his affidavit but he could not be cross examined on several dates and in the meantime he died. PW Suraj Pal Vohra, the plaintiff himself was examined as PW1. During the evidence, the plaintiff produced the documents Ex. PW1/2 to Ex. PW1/10.
10. The defendant No.1 did not examine any witness. After filing written statement none appeared on behalf of the defendant No.1. The suit was contested by the defendant No.2 only. The defendant No.2 examined only one witness. DW1 is Trilochan Singh, the defendant No.2 himself. During the evidence, the defendant No.2 produced the documents Ex. DW1/A to Ex. DW1/D.
11. I have heard counsel for the parties and perused the material available on record carefully. I have also gone through written submissions tendered on behalf of the plaintiff and the defendant no. 2. My issue wise findings are as under :
Issue No. 1, 2, 5 & 6Whether the plaintiff is entitled for a decree of sum of Rs.19,672.50 as claimed for ? OPP Whether the plaintiff is entitled for future interest @ 15% as prayed for ? OPP Whether the suit of the plaintiff is without cause of action as against Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 5/12 defendant no.2, in view of the facts as pleaded in preliminary objection no. 6 ? OPD2 Whether plaintiff has encroached upon the area and has carried out any unauthorised construction as pleaded in the preliminary objection no.7, if so to what effect ? OPD2
12. Onus qua issues No.1 and 2 was placed on the plaintiff and onus qua issues No.5 and 6 was placed on the defendant No.2. These issues are taken together being interconnected.
13. To prove these issues, it is stated on oath by PW1 Suraj Pal Vohra in his affidavit that he being owner/landlord of a shop (Private No.1) in property No.B1/95, New Moti Nagar, New Delhi, let out the same to the defendant No.1 on 8 th April 1994 vide a written rent note, duly signed by the plaintiff and the defendant no.1 on a monthly rent of Rs.600/ per month exclusive of water and electricity charges. It is further stated that the certified copy of the agreement is Ex. PW1/2. It is further stated that the tenancy was agreed for 11 months but was a monthly tenancy. It is further stated that the defendant no.1 did not vacate the premises after 11 months and continued using the shop. It is further stated that the defendant no.1 also in a secret manner sublet or otherwise parted with the possession of the shop in question to the defendant no.2. It is further stated that the defendant no.1 also stopped making payment of rent to the plaintiff since March 1997. It is further stated that the plaintiff served a registered AD as well as UPC notice dated 17.02.2001 demanding arrears of rent of three years and also terminated the Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 6/12 tenancy of the defendant No.1 because of nonpayment of rent and for subletting from 31st March, 2001. It is further stated that the defendant No.2 had already handed over the possession of the shop to the defendant No.2, did not make payment of arrears of rent to the plaintiff and took a frivolous plea that he had already vacated the premises in March, 1995. It is further stated that the plaintiff filed an eviction petition against the defendants on the ground of nonpayment of rent and for subletting. It is further stated that during the proceedings the learned ARC vide order dated 11.03.2002, passed an order under Section 15(1) DRC Act against the defendant no.1, directing him to pay the plaintiff rent for a period of three years prior to filing of petition and for period after i.e. from 26.05.98 at the rate of Rs.600/ p.m., to the plaintiff within one month of the date of order. It is further stated that the defendant no.1 did not comply with the said order and abstained himself from the proceedings and was proceeded ex parte. It is further stated that vide judgment dated 14.01.2003, the learned ARC, Delhi passed an eviction order against the defendants due to nonpayment of rent and subletting. It is further stated that the plaintiff got the possession of shop from the possession of defendant no.2 on 08.03.2004, but none of the defendants paid any arrears of rent to him since March, 1997.
14. To disprove the case of the plaintiff, it is stated by DW1 Trilochan Singh in his affidavit that he had approached the Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 7/12 plaintiff to purchase the private shop bearing No.1 measuring 111/2' x 6 in premises No. B1/95, New Moti Nagar, New Delhi for a valuable consideration of Rs.20,000/ in respect of super structure of the said shop in the year January, 1995. It is further stated that the plaintiff after receipt of entire consideration of super structure of the above said shop did not issue any receipt and sale documents in his favour but instead of allowed him to commence his business in the said shop for PCO and selling gift articles. It is further stated that he came to know that the plaintiff is only allotted one room flat No. B1/95, New Moti Nagar, New Delhi and he also came to know that the plaintiff illegally and unlawfully inclusion with his so encroached upon the government land about 100 sq. yds adjacent to his allotted flat and raised construction of one room and four shops thereon and one such shop was then sold by the plaintiff to him in the year 1995. It is further stated that the plaintiff had sold or rented out other shops and rooms as illegally and unauthorizedly constructed by him on the encroached government land. It is further stated that he made the complaint to the MCD and DDA for taking appropriate action against the plaintiff for the removal of the said illegal and unauthorized construction and encroachment over the government land but without any fruitful result. It is further stated that he had filed a suit for Permanent and Mandatory Injunction against the plaintiff and Ms. Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 8/12 Geetanjali Goel, the then Civil Judge had passed an demolition order and the MCD have taken the demolition action at the suit property on 21.05.2009 and the certified copy of the action taken report along with photographs is Ex. DW1/B(Colly) and the photographs of the demolished shops are Ex. DW1/C and DW1/D.
15. The Hon'ble High Court of Delhi has in G. Ram v. Delhi Development Authority AIR 2003 Delhi 120 held that an immovable property can be transferred only by executing a registered document as provided for under section 54 of the Transfer of Property Act read with section 17 of the Indian Registration Act. But, the defendant No.2 has placed on record no sale deed to prove that the suit property has been purchased by him. During the cross examination, it is admitted by DW1 that no document of sale was executed in his favour. In view of the above, there is no material on record to prove that the plaintiff has ever sold the suit property to the defendant No.2.
16. Admittedly, the plaintiff is owner/landlord of the suit property. Admittedly, the suit property was let out to the defendant No.1. The contention of the defendant No.1 is that he had vacated the suit property. The allegations of the plaintiff is that the defendant No.1 had sub let the suit property to the defendant No.2. Contention of the defendant No.2 is that he had already purchased the suit property from the plaintiff. As I have Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 9/12 already observed, the defendant No.2 has failed to prove that he has purchased the suit property. The defendant No.1 has failed to prove his contention to the effect that he had vacated the suit property. The plaintiff has proved that an application for recovery of possession under the provisions of Section 14(1)(a) and (b) of Delhi Rent Control Act was filed by the petitioner against Kishan Kumar Gauba and Trilochan Singh, the defendants herein and vide judgment Ex. PW1/9, it was allowed. The plaintiff has also proved vide Ex. PW1/10 that in execution proceedings possession of the suit property was received by decree holder Suraj Pal Vohra from the judgment debtor No.2 Trilochan Singh. It is also admitted by the defendant no.2 that Court Bailiff had taken the possession of the suit shop from him. In view of the above, it is proved that the defendant No.2 was in possession of the suit property at the time when order of eviction was executed through Bailiff.
17. The learned counsel for the defendant No.2 has urged that the landlord cannot maintain the suit for recovery of rent from a person other than a tenant.
18. On the other hand, the learned counsel for the plaintiff has referred to judgment in Devesh Bhargava v. Pushpa Kapoor & Anr., IX1987(2), All India Rent Control Journal 377 to argue that the suit for recovery of rent from the tenant and simultaneously for damages for use and occupation from the person who may Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 10/12 have been put in possession through the tenant is maintainable. Relevant portion of the judgment reads as follows:
"I am of the view that an owner of an immovable property can successfully maintain an action for the recovery of arrears of rent from his tenant and simultaneously for the recovery of damages for use and occupation from the person who may have been put in possession by the tenant and the fact that there is no privity of contract between the owner and the person inducted by the tenant has no defence to the suit of the owner being decreed against the occupant. In such a case the decree for the recovery of the amount is executable against either the tenant or the actual occupant of the property."
19. In the light of Devesh Bhargava's case (supra), a landlord can maintain action for damages for use and occupation against a person. It has been proved by the defendant No.2 that the suit property has been demolished by the order of court on 21.05.2009, however, demolition of the suit property has no bearing on the merits of this case as relationship per se between the parties of landlordtenant/subtenant are proved.
20. For the aforestated reasons, these issues are decided in favour of the plaintiff and against the defendants.
Issue No.3 & 4Whether there is no arrear of rent as against defendant no.1 as he had vacated the tenanted premises before March 1995 as pleaded in the preliminary objections ? Whether the plaintiff has played any fraud for getting the eviction orders ?
21. Onus qua these issues was placed on the defendant No.1. The defendant No.1 has failed to examine any witness to prove these issues and was proceeded ex parte. Hence, these issues remain unproved for want of evidence.
Relief
22. In view of my findings on issues no.1 & 2, it has been proved Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 11/12 that the plaintiff was a landlord qua the tenanted premises and the defendant no.1 was a tenant. It is also proved that the defendant no.2 was in possession of the tenanted premises when the plaintiff took possession of the same in execution of order of eviction. The defendant no.1 has failed to prove that he had vacated the premises before March, 1994. In view of my findings on issue no.5 & 6, the defendant no.2 has failed to prove that he had purchased the tenanted premises from the plaintiff. As per the admission of the defendant no.2 himself, he came into possession of the suit property in January, 1995. The defendant no.2 had handed over the possession of the premises in question to the plaintiff in execution of warrants of possession through Bailiff on 08.03.2004. Admittedly, the defendant no.2 has not paid damages for use and occupation of the premises in question to the plaintiff. In view of the above discussion and for the reasons stated above, the suit of the plaintiff is decreed with costs. The defendant no.2 shall pay a sum of Rs. 19,672.50 to the plaintiff as damages for the use and occupation of the premises in question for thirty and half months. The defendant shall also pay interest at the rate of 6% per annum on such sum from the date of issue of receipts till the realization of decretal amount. Decree sheet be prepared accordingly.
Announced in the open court (Dr. Rakesh Kumar)
on 30.08.2011 Commercial Civil Judge
North Delhi District
Tis Hazari Courts: Delhi
Suit No: 181/04 Suraj Pal Vohra v. Krishan Kumar Gauba Page 12/12