Delhi District Court
Suraj Singh Jain vs . Dilbahar Singh Arora on 5 July, 2022
Suraj Singh Jain vs. Dilbahar Singh Arora
CS SCJ 93267/16
IN THE COURT OF MS. SONAM SINGH-II, CIVIL JUDGE-07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No. : 93267/16
CNR No. : DLCT03-000004-2010
Date of Institution: 13.10.2010
Date of reserving the Judgment: 04.07.2022
Date of Decision: 05.07.2022
Shri Suraj Singh Jain
S/o Shri G.K. Jain,
7-A/2, Rajpur Road,
Delhi - 110054 ...........Plaintiff
-versus-
Shri Dilbahar Singh Arora
Partner of M/s. Neo Remedies
R/o FIU-159, Pitampura,
Delhi - 110088 ..........Defendant
SUIT FOR RECOVERY OF RENT AND MESNE PROFITS
Present: None for plaintiff.
None for defendant.
JUDGMENT
1) The present suit has been instituted by plaintiff seeking a decree for recovery of Rs 96,600/- (Rupees Ninety Six Thousand Six Hundred Only) against defendant as maintenance charges and arrears of rent/damages and rent at the market rate of Rs 11,000/- per month w.e.f 05.03.2010 to 07.10.2010.
Averments contained in Plaint:
2) The case of plaintiff in brief is that he is the landlord of premises/basement bearing No. B-11, Aradhana Bhawan, B-2/4, Naniwala Complex, Azadpur, Delhi- 110033 Page 1 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 and had inducted defendant as a tenant therein vide lease deed dated 05.03.2008 at a monthly rent of Rs. 5,500/- p.m. exclusive of water, electricity & maintenance charges. As per the terms of lease deed, in case defendant fails to pay the rent for two continuous months, then plaintiff shall have a right to terminate tenancy and recover the possession with damages and mesne profits. Plaintiff sent a letter dated 05.03.2010 in which he had stated that in case defendant wants to continue with tenancy, defendant should inform him, but even after service of said notice, defendant did not send its reply. Plaintiff again sent a letter dated 29.05.2010, however, despite service defendant failed to pay the rent to plaintiff. On 08.06.2010 plaintiff received a vague reply of defendant containing false averments. Defendant has thus not paid the rent with effect from 05.03.2010 despite several requests and reminders of plaintiff and also not paid the maintenance charges to the Builder Company i.e. M/S Ajay Enterprises Ltd. which is maintaining the building in which the premises are situated since the inception of the tenancy. The tenancy of defendant is based on English Calender month and starts from the first day of month and ends on the last day of month being the month by month tenancy. As defendant has failed to observe the terms and conditions of lease deed dated 05.03.2010, therefore, plaintiff sent notices dated 05.03.2010, 29.05.2010 and 02.07.2010, however, despite service of notices defendant has not paid single penny since the expiry of lease w.e.f. 05.03.2010 and continued to occupy the tenanted premises unlawfully and illegally as tenancy has come to an end by efflux of time. Plaintiff however as a matter of caution terminated the tenancy of the defendant by legal notice dated 24.07.2010 by his counsel through registered post as well as U.P.C. which was duly served upon defendant but defendant failed to vacate the premises also not paid rent till date. In the plaint, it is further averred that the present rental value of the premises in question is Rs. 11,000/- per month and plaintiff is entitled to receive mesne profits and damages @ Rs. 11,000/- per month w.e.f. 05.03.2010 till the vacation of the premises and defendant is thus liable to pay Rs. 77,000/-
along with maintenance charges to the Builder Company or Association or to the Landlord having not paid the same since inception of his tenancy and even prior to it as prior to creation of tenancy by the plaintiff, father of the plaintiff was the owner Page 2 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 and defendant was tenant even then. Vide letter dated 07.09.2010 defendant promised to hand over the possession of the tenanted premises and also promised to pay all dues of the Builder Company/Society and other dues i.e. maintenance charges, electricity and water charges etc. till 30.09.2010 but even after 30.09.2010 he has failed to do the same. On 07.10.2010, however, defendant handed over the possession of premises to plaintiff and as per his own calculations, he paid an amount of Rs. 16,500/- by cheque after deducting security amount of Rs. 22,000/- whereas he is liable to pay Rs. 39,600/- after deducting the amount of Rs. 16,500/- and security. Hence, the present suit.
Version of defendant:
3) In the Written Statement filed on behalf of defendant, preliminary objections have been raised qua the cause of action, suppression of material facts, territorial jurisdiction of this Court and non-joinder of necessary parties. It is stated that plaintiff himself admits in para no. 10 of the plaint that defendant on 07.10.2010 handed over the vacant and peaceful possession of the suit premises to the plaintiff.
It is stated that at the time of vacation of suit premises, defendant had paid the entire agreed rent to plaintiff and the same was duly accepted and the cheque was duly encashed by the plaintiff without any protest or objection. It is stated that in view of the fact that the cheque bearing no. 87919 was duly credited in the account of plaintiff, nothing is due or payable by defendant and plaintiff is estopped from claiming any alleged damages from defendant. It is stated that defendant vide his letter dated 07.09.2010 informed plaintiff about his intention to vacate the suit property and the same was vacated in the presence of plaintiff's representative who received the cheque as full and final settlement towards rent after deducting the security deposit of Rs. 22,000/-. It is further stated that the suit property is situated at Azad Pur, Delhi which comes within the jurisdiction of P.S. Adarsh Nagar, Delhi which comes within North-West District and that defendant is a resident of Pitampura, Delhi. In these circumstances, this Court has no territorial jurisdiction to try and entertain the present suit. It is further stated that the present suit is bad for non-joinder of necessary parties as Ardhana Bhawan Welfare Association (Regd) Page 3 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 and M/S Ajay Enterprises Private Limited have not been made parties in the present suit. It is stated that consequent to the order passed by the Hon'ble High Court of Delhi for transfer of maintenance of commercial complex to the respective associations, the Ardhana Bhawan Welfare Associations (Regd) has filed the suit against the Builder M/s Ajay Enterprises Private Limited which is pending in the Court of Sh. Rakesh Kumar-1, Civil Judge, Delhi and on account of the said dispute, all the occupants resolved not to pay maintenance to the builder as the services rendered by builder was not proper and has been charging exorbitant amount of maintenance from the occupants and in these circumstances, the alleged bills raised by the builder are not payable and defendant is not liable to pay the said amount. It is further stated that the alleged claim of plaintiff to recover the maintenance charges is also not payable as plaintiff himself has not deposited the same with the builder or with the association. Defendant has further stated that after completion of original lease period, the staff of plaintiff in order to pressurize defendant to increase the rent from Rs 5,500/- to Rs 7,500/- per month refused to accept the rent which was tendered due to which defendant was forced to write a letter to plaintiff and after receipt of which, plaintiff expressed unconditional apology and agreed to re- negotiate the future rent. However, as plaintiff was adamant to increase the rent disproportionately, defendant was left with no other option but to vacate the premises by making the entire payment of rent as per the rate settled and mentioned in the rent agreement after adjusting the entire security deposit lying with plaintiff and the same was duly acknowledged and accepted by plaintiff without any protest or objection and the cheque tendered by defendant was duly credited in the account of plaintiff, and thus stated that no money is due against defendant towards rent and electricity charges. Apart from this, defendant has denied the averments contained in plaint.
Replication filed by Plaintiff:
4) In the Replication, plaintiff has mainly denied the contents of Written Statement and reaffirmed & reiterated the averments contained in plaint. Plaintiff herein has also stated that he has no knowledge about any suit of Ardhana Bhawan Welfare Page 4 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 Association (Regd.) against builder M/S Ajay Enterprises Private Limited and that plaintiff is partly paying maintenance charges to the authorised builder maintenance company. It is further stated that the tenancy of defendant was for period up to 04.03.2010 and was never extended after the said period.
Settlement of Issues:
5) Vide order dated 10.03.2011 following issues were framed by the then Ld. Predecessor:
1. Whether plaintiff is entitled to a decree for a sum of Rs. 96,600/-?
OPP
2. Whether plaintiff is entitled for any arrears of rent/damages? If yes, at what rate and for what period? OPP
3. Whether suit of the plaintiff is without any cause of action? OPD
4. Whether this court has no territorial jurisdiction to try this suit?
OPD
5. Relief.
Evidence on behalf of Plaintiff:
6) In order to prove his case, four witnesses have been examined on behalf of plaintiff as follows:
PW-1: Mr. Suraj Singh Jain (Plaintiff) has tendered his evidence by way of affidavit which is Ex. PW-1/X and relied upon the documents Ex. PW 1/1 to Ex. PW 1/18 (Ex. PW 1/16 being objected as to mode of proof) and also relied upon Ex. PW 1/A to Ex. PW 1/I (Ex.PW-1/J being not on record).
In his cross-examination, PW-1 has stated that he is an advocate by profession since year 2008 and has been regularly appearing in all District Courts in Delhi. PW-1 has stated that he is not aware whether the suit property i.e. Aradhana Bhawan is situated within the territorial jurisdiction of P.S. Adarsh Nagar and has not made any enquiry Page 5 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 to ascertain whether the suits and other legal proceedings pertaining P.S. Adarsh Nagar falls in the jurisdiction of Rohini District Court. He has further stated that he has gone through the contents of written statement filed by defendant including preliminary objection raised by the defendant regarding lack of territorial jurisdiction of this Court. It is further stated that he was not collecting rent from defendant personally and has denied that the rent was collected by Sh. Harjit Singh. It is stated that Sh. Harjit Singh was the employee of his father Sh. G.K. Jain and that he does not know whether the signature appended on mark 'A' is that of Sh. Harjit Singh. PW-1 has further stated that the cheque bearing no. 087919 dated 07.10.2010 for sum of Rs. 16,500/- was credited in his account and that he has not made any enquiry from Sh. Harjit Singh regarding execution of letter dated 07.10.2010. The witness has denied that he has admitted the contents of the letter dated 07.10.2010 and stated that at present Sh. Harjit Singh is not working with his father and is not working since last two years. It is further stated that he is not aware as to whether his father knows about the residential address of Sh. Harjit Singh and that he does not remember whether he had received the letter mark 'A' along with the cheque for a sum of Rs. 16,500/-. The witness has denied that the accounts between him and defendant was settled after adjustment of security for a sum of Rs. 16,500/-
and further denied that he is intentionally disputing the signatures of Sh. Harjit Singh on the letter mark 'A'. He has also denied that he has intentionally not cited Sh. Harjit Singh as witness in the present suit. It is stated that he does not remember whether he has replied to the letter dated 08.06.2010 written by defendant. He has further stated that he is not aware whether there is an Association under the name of Aradhana Bhawan Welfare Associations and that he lastly visited the complex about one year back. He has further stated that he is not aware whether Aradhana Bhawan Welfare Association is maintaining the entire complex and also not aware whether all the occupants/owners of Aradhana Bhawan have been paying maintenance charges to the association. The witness has stated that he has deposited some amount with the builder- M/S Ajay Enterprises as maintenance charges from time to time and that he does not remember whether he had placed any receipt regarding the deposit of maintenance charges paid by him to the builder pertaining to the period Page 6 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 when the premises was under the occupation of defendant on record. The witness has denied that he had not paid any maintenance to the builder with respect to the period when the premises was under the occupation of defendant and has stated that he is not aware whether M/S Aradhana Bhawan Welfare Association had filed the suit against the builder in THC. The witness has denied that he has no pending claim of any nature against the defendant after receiving the cheque dated 07.10.2010 for a sum of Rs. 16,500/- He has further denied that the alleged arrears of electricity bill Ex. PW 1/7 as claimed by him in the present suit pertains to the period subsequent to the vacation of the premises by defendant. He has also denied that subsequent to 05.03.2010 the person who was earlier receiving the rent on his behalf from defendant refused to accept the agreed rent from defendant. The witness has stated that he does not remember whether Sh. Harjit Singh used to carry/receive/ serve all the correspondence from defendant on his behalf and that he does not remember whether there was any other person other than Sh. Harjit Singh. The witness has denied that the rate of rent of the said office was never expected as Rs. 11,000/- or that no such premises was taken on rent in the said year. He has further stated that at present the suit property is under his occupation. He has denied that the claim regarding mesne profit of Rs. 11,000/- per month w.e.f. 05.03.2010 is not maintainable. Lastly the witness has denied that he is deposing falsely.
PW-2: Mr. G.K. Jain has tendered his evidence by way of affidavit which is Ex. PW 2/A and has relied upon documents which are already exhibited as Ex. PW1/1 which bears his signature at point B, that of lessor at point A and of lessee at point C. He has also relied upon document i.e. Ex. PW 2/2 which is letter dated 03.01.2008 which bears his signature at point X and further relied upon document Ex. PW 2/3 which is postal receipt dated 04.01.2008.
In his cross-examination, PW-2 has stated that he is a businessman and has a finance company. The witness has denied that there is no default in payment of rent from the day rent agreement was executed till 5.03.2010. He has stated that he had sent letters to defendant in respect of default of payment of rent made by him prior to filing of the suit. He has stated that Sh. Harjeet Singh is employee of his finance company Page 7 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 and he cannot identify his signatures as he does not put his signatures in the ordinary course of business. The witness has denied that he is intentionally not identifying the signatures of his employee- Sh. Harjeet Singh and has stated Sh. Harjeet Singh is still under his employment and can produce him in the court. He has further stated that they do not maintain attendance register and denied that as defendant had made full and final payment to Sh. Harjeet Singh as per letter dated 7.10.2010 which is mark A due to which he is not identifying his signatures. It is further stated that he got encashed cheque no. 087919 dated 7.10.2010 for Rs. 16,500/- and that he does not remember whether he or plaintiff sent any letter at the time of accepting the above said cheque in respect of due payment. The witness has denied that the payment of Rs. 16,500/- after adjusting the security of Rs. 22000/- was made as full and final payment due to which they had not issued any letter to defendant. The witness has further stated that he does not know whether the property in question falls within the jurisdiction of P.S. Adarsh Bhawan or President thereof and that he does not know whether any litigation is pending between welfare association and builder in respect of maintenance charges. He has further stated that he does not know whether the residents of Aradhana Bhawan have stopped making payment of maintenance charges to builder and are paying the same to the association which is maintaining the building. The witness has denied that he is aware that such suit between association and builder is pending before the court of Sh. Prashant Kumar. Ld. Civil Judge and that he does not know that as the property in question falls within the jurisdiction of PS Adarsh Nagar, he has filed wrong suit before this court. PW-2 has further stated that they have not deposited the entire amount with the builder in respect of maintenance charges but used to deposit the same time to time. He has further stated that he has not deposited the maintenance charges as claimed by him with the builder and denied that defendant deposited the maintenance charges with the builder prior to filing of the suit by the association against the builder. He has further denied that they have claimed the electricity charges from the defendant when he was not in possession thereof and stated that the letter dated 08.06.2010 was received by them and they've filed the same on record. The witness has denied that they had given instruction to their employee not to collect the rent Page 8 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 from defendant and stated that he does not remember whether they had sent any reply to the letter sent to them. The witness has denied that they did not send the reply as they were at fault and also denied that the rate of rent was Rs. 5,500/- / 6000/- when defendant was in occupation of property in question. He has also denied that no property in the similar situation is let out @ Rs. 11000/- per month. It is further denied that the agreement Ex. PW 1/18 is filed only for the purpose of filing present suit by deliberately inflating the rate of rent. The witness has stated that he has not filed any copy of agreement on record which may show the rate of rent of Rs. 11,000/-per month. The witness has denied that on account of negotiations between them oral tenancy remained continued for 2/3 months and further denied that defendant is not liable to pay the suit amount. It is further denied that they have voluntarily received the possession of suit premises through our employee- Harjeet Singh and having acknowledged and accepted the amount of Rs. 16,500/- towards full and final settlement amount and on that account the present claim filed by plaintiff is not payable.
PW-3: Mr. Sanjay Malakar (Assistant Manager- Accounts, Ajay Enterprises Pvt. Ltd.) in his examination-in-chief has deposed that he has brought the summoned record i.e. Statement of Account of Property No. B-11, B-2/4, Naniwala Bagh, Azadpur Complex, Delhi for the period from 30.12.2005 to 15.05.2010. Copy of the Statement of Account as maintained in their record is Ex. PW 3/1 and it is stated that the statement of account maintained by them shows the payment of Rs. 4,339/- with respect to maintenance and other charges from the owner of the premises. It is further deposed that he has also brought the copy of receipts issued to Sh. Girish Kumar Jain from 15.06.2006 to 14.05.2009, copies of the same are Ex. PW 3/2 to PW 3/5 and that he has also brought the copies of the bills raised by them and the same are Ex. PW 3/6 to Ex. PW 3/15.
In his cross-examination, PW-3 has stated that he has been called from the office of builder and has no knowledge about the decision of the Hon'ble High Court that maintenance of office and flats cannot be taken by the builder and it is the association of flat owners/office holders who would collect maintenance charges.
Page 9 of 19 (Sonam SinghII)Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 The witness has further stated that he is not aware that a case between the association of occupants of flats is pending in the court of Sh. Rakesh Kumar, Civil Judge, Delhi titled as M/S Aradhna Bhawan Welfare Associations vs. M/S Ajay Enterprises Pvt. Ltd. The witness has further stated that the last payment as per record brought by him was made by plaintiff on 14.05.2009. The witness has denied that no payment has been made by plaintiff to M/S Ajay Enterprises Pvt. Ltd and the payment shown by him in Ex. PW3/1 is a collusive payment. It is stated that he is not aware when defendant Dilbahar Singh came in the complex as a tenant and when he vacated the same and that he's not aware as to whether the defendant at the time of vacation of the tenanted office had settled with the plaintiff as full and final payment and no claim of plaintiff is left against him. The witness has denied that he is aware about the litigation in the Hon'ble High Court and in the Court of Sh. Rakesh Kumar, Civil Judge, Delhi and he is deliberately and intentionally denying the same. The witness has stated that he is not aware as to how many tenants are in the said building and that at present, he is not possessed with the list of occupants of M/S Aradhna Bhawan.
PW-4: Sh. K. Kapoor in his examination-in-chief has deposed that his wife is the proprietor of M/S Aarti Properties and that he has closed the business of property dealing, therefore, he does not know the rate of rent prevailing in the area.
In his cross-examination, PW-4 has stated that he does not have any personal knowledge about the facts of present case.
Defendant Evidence:
7) On behalf of defendant, one witness namely: Sh. Dilbahar Singh Arora (Defendant) has been examined as DW-1 who tendered his evidence by way of affidavit which is Ex. DW 1/A and relied upon the following documents i.e. Ex.
DW1/1- letter dated 07.10.2010, Ex. DW1/2- letter dated 07.09.2010 which is already exhibited as Ex. PW1/14, Ex. DW 1/3- letter dated 08.06.2010, photocopy of bank statement Mark-A, photocopy of circular issued by the Association in the Page 10 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 month of June 2010 Mark-B, photocopy of the suit filed by the Association as Mark- C and photocopy of the cheque dated 07.10.2010 as Mark-X. (Ex. DW 1/1, Ex. DW 1/2 and Ex. DW 1/3 objected as to mode of proof).
In his cross-examination, DW-1 has stated that he and plaintiff had entered into lease agreement Ex.PW 1/1 which bears his signature on all pages and as per Clause 3 of the said lease deed, he was to pay the maintenance charges of the premises to plaintiff. DW-1 has stated that on account of maintenance charges, he has not paid even a single penny and he does not know whether plaintiff has been paying maintenance charges to the society of building and maintenance charges are paid up to date. The witness has stated that he does not agree that the amount was paid vide receipt Ex. DW1/P1 (OSR) against maintenance charges for the period during which he was tenant. He has stated that the name of the person who executed document Ex. DW 1/1 was supposedly Sh. Harjeet Singh. It is further stated that he does not have any written authority which authorizes Sh. Harjeet Singh to enter into full and final settlement on behalf of plaintiff with him and vol. stated that he would check the record. The witness has denied that Sh. Harjeet Singh was not authorized to enter into settlement and further denied that he is liable to pay Rs. 96,600/- including interest along with future interest as mentioned in the plaint. Lastly, the witness has denied that he is deposing falsely.
Findings:
Issue 1: Whether plaintiff is entitled to a decree for a sum of Rs. 96,600/-?
OPP Issue 2: Whether plaintiff is entitled for any arrears of rent/damages? If yes, at what rate and for what period? OPP
8) Issues no.1 & 2 are taken up together being inter-related and can be decided by the common appraisal of evidence on record. The onus to prove both the issues was on plaintiff. PW-1 (plaintiff) in his affidavit Ex. PW1/X has deposed that he is the landlord of suit premises and had inducted defendant as a tenant therein vide lease deed dated 05.03.2008 which is Ex. PW1/1 at a monthly rent of Rs 5,500/- exclusive Page 11 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 of water, electricity & maintenance charges. PW-1 in his evidence has deposed that defendant has not paid rent w.e.f 05.03.2010 depsite various reminders and letters and also not paid the maintenance charges since inception of tenancy to the Builder Company i.e. M/S Ajay Enterprises Ltd. which is maintaining the building and has failed to observe the terms and conditions of the aforesaid lease deed. He has further deposed that the tenancy of defendant has come to an end by efflux of time, however, despite service of legal notice dated 24.07.2010, defendant failed to vacate the same or to pay the amount due as rent @ Rs 11,000/- per month amounting to Rs 77,000/- & maintenance charges to the Builder Company or Association or to Landlord. PW-1 has further deposed that vide his letter dated 07.09.2010 defendant promised to hand over the possession of tenanted premises and also to pay all dues including maintenance charges, electricity and water charges till 30.09.2010, but he failed to clear the dues and only handed over the possession of tenanted premises to plaintiff & paid an amount of Rs 16,500/- by way of cheque after deduction of security amount of Rs 22,000/- whereas he is liable to pay Rs 39,600/- more in addition to the maintenance charges of Rs 57,000/- and electricity charges of Rs 222/-.
Plaintiff, by way of present suit, has sought recovery of Rs 96,600/- which comprises of maintenance charges of Rs 57,000/- and arrears of rent/damages of Rs 39,600/- including electricity charges against defendant. In respect of arrears of rent, plaintiff has deposed in his affidavit that even though defendant has vacated the premises and handed over its possession to plaintiff along with cheque of Rs 16,500/-, however, he ought to have paid Rs 39,600/- more. Perusal of the affidavit of PW-1 reveals that the plaintiff has claimed arrears of rent/mesne profits/damages against defendant at the rate of Rs 11,000/- per month from 05.03.20210 to 07.10.2010. However, perusal of the lease deed i.e. Ex. PW1/1 (which has not been disputed by defendant) shows that it was executed between the parties for time period from 05.03.2008 to 04.03.2010 at a monthly rent of Rs 5,500/- only and not Rs 11,000/- per month. Perusal of the said lease further reveals that it was further agreed between parties thereto that with increase in the rates of rent or taxes, etc. the Page 12 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 rent shall be subjected to increase in the same ratio after mutual discussion between lessor and lessee. Here, it is not the case of plaintiff that the amount of Rs 11,000/- was the mutually agreed rate of rent to be paid by defendant to plaintiff. Nowhere in his affidavit has plaintiff deposed that it was agreed between parties after discussion that rent will be paid at the rate of Rs 11,000/- per month, nor has the plaintiff been able to show that for the period from 05.03.2010 to 07.10.2010 the market rent of the similarly situated premises was Rs 11,000/- per month. Plaintiff has merely relied upon Ex. PW1/18 which is the lease deed dated 10.01.2011 entered qua the suit premises at a monthly rent of Rs 7,500/- which in view of this Court cannot be relied upon having been entered between plaintiff himself and one Sh. Amit Chauhan. Apart from this document, no other independent document has been relied upon by plaintiff to show his computation of rent/mesne profit/damages at the rate of Rs 11,000/- per month for the suit premises and therefore, the claim of plaintiff to charge damages/mesne profit at the said rate cannot be accepted.
9) Now, with respect to the claim of plaintiff against defendant for Rs 57,000/- qua the maintenance charges it has been deposed in his affidavit which is Ex. PW1/X that defendant has not paid the same since inception of tenancy. Perusal of lease deed which is Ex. PW2/1 shows that defendant was also a tenant in the suit premises for the period from 02.01.2006 to 01.01.2008 as has also been deposed in the affidavit of PW-2 which is Ex. PW 2/A. It thus transpires that the maintenance charges of Rs 57,000/- has been claimed against defendant for the period 02.01.2006 to 07.10.2010. In the lease deed dated 02.01.2006 as well as in the lease deed which is Ex. PW1/1 executed on 05.03.2008 between parties that: the lessee shall pay all the charges of maintenance, water and electricity as per bill prepared by the maintenance society/ Delhi MCD/ Estate Manager for the said premises or in accordance with the bill received from the Municipal/concerned authority in that connection.
In his cross-examination, DW-1 (defendant) has admitted that as per Clause 3 of Ex. PW1/1, defendant is liable to pay the maintenance charges of premises to plaintiff and that he has not paid a single penny qua the same. DW-1 has rather relied upon Page 13 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 Ex. DW1/1 and contends that the cheque of Rs 16,500/- was accepted by the staff/representative of plaintiff- namely Sh. Harjeet Singh as full and final settlement amount on behalf of plaintiff. Defendant has however thereafter stated that he does not have any document which authorised the said Harjeet Singh to enter into full & final settlement with him on behalf of plaintiff. DW-1 has also deposed in his affidavit Ex. DW1/A that on account of the dispute between the Builder and the Aradhana Bhawan Welfare Association (Regd), he has paid all the maintenance charges to the said Association as it is managing the entire maintenance issues and that all the occupants resolved not to pay maintenance to the builder as services rendered by the builder was not proper and builder has been charging exorbitant amount of maintenance from the occupants.
Thus, whereas on the one hand it has been stated by defendant that he has paid the maintenance charges to the Aradhana Bhawan Association for the relevant period, on the other hand, he has stated in his cross-examination that the cheque of Rs 16,500/- has been paid to the staff of plaintiff in full and final settlement and has again stated that he is liable to pay the maintenance charges of premises to plaintiff but has not paid a single penny qua the same. It is pertinent to note here that even though defendant has deposed in his affidavit Ex. DW1/A that the cheque was tendered to the representative of plaintiff as full and final settlement towards rent after deducting the security deposit of Rs 22,000/-. Further, in his cross-examiantion DW-1 has stated that he doesn't have any authority in writing to show that Sh. Hrajeet Singh- plaintiff's representative was authorized to enter into settlement on behalf of plaintiff and nothing on record has been brought by defendant to this effect nor has defendant examined the said Sh. Harjeet Singh as witness to establish the said contention. Further, the claim of defendant that the alleged bills have already been paid by him to the Association has also not been proved as no document qua the payment made has been placed on record by defendant nor has any witness been examined from the said Association to establish the payment made to it by defendant. Furthermore, it has been admitted by defendant himself that he is liable to pay the maintenance charges of premises to plaintiff but has not paid a single penny Page 14 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 in respect of the same. Furthermore, defendant has also not examined any occupant to prove his contention that maintenance amount was agreed to be not paid to the builder as services rendered by it were not proper and builder had been charging exorbitant amount of maintenance from the occupants. It is also to note here that defendant has also contended that he has paid the maintenance charges to the Association for the relevant period on account of order of the Hon'ble High Court and pending case between the association and the builder. However, defendant has not placed on record any order of the Court where the suit is/was pending or even order of the Hon'ble High Court to show that payment was directed to be made to the association and not builder. Defendant has merely placed on record the photocopy of a circular issued by the Association which is Mark-B and photocopy of the plaint filed by Association as Mark-C, however, same cannot be relied upon in absence of proper proof. As stated above, neither defendant has been able to prove payment of maintenance charges made by him to the Association, nor any witness/official has been examined from the said Association to show the payment made by defendant in respect of maintenance charges nor has defendant placed on record the order made by Court qua the deposit of maintenance charges to the Association and not the Builder. Thus, none of the contentions as averred by defendant has been proved by him.
Plaintiff, on the other hand, has relied upon Ex. DW-1/P-1 (OSR) and even though DW-1 has disagreed that the amount was paid herein against maintenance charges for the period during which he was tenant, however, in his cross-examination he has also stated that he doesn't know whether plaintiff has been paying the maintenance charges up to date. Now, perusal of this document issued by the Builder in the name of PW-2 reveals that all dues amounting to Rs 1,56,246/- including interest up to 31.03.2015 have been cleared. Plaintiff has also examined the witness namely Mr. Sanjay Malakar as PW-3: Assistant Manager- Accounts of the Builder- M/S Ajay Enterprises Pvt. Ltd. who has placed on record the receipts of payment i.e. Ex. PW 3/2 to Ex. PW 3/5 as well as the Statement of Account of maintenance charges for the period from Jan. 2006 to Sept. 2010 amounting to Rs 57,470/-. PW-3 has also Page 15 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 relied upon Ex. PW 3/6 to Ex. PW 3/15 which are the bills raised by the builder qua the tenanted/suit premises. Defendant is thus liable to pay maintenance charges as claimed by plaintiff.
Thus, in view of discussion made hereinabove, Issue no.1 is partly decided in favour of plaintiff & against defendant, and Issue no.2 is decided in favour of plaintiff and against defendant at the rate of Rs 5,500/- per month for the period from 05.03.2010 to 07.10.2010.
Issue no.3: Whether suit of the plaintiff is without any cause of action? OPD
10) The onus to prove this issue was on defendant. The meaning of cause of action in common legal parlance is a bundle of facts which is necessary for plaintiff to prove in order to succeed in the suit. The Hon'ble Supreme Court in Rajasthan High Court Advocates' Assn. v. Union of India, (2001) 2 SCC 294 has explained the meaning of cause of action. Para 17 of the said judgment may be reproduced as follows:
"The expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises."
In the present suit, plaintiff has averred that cause of action arose in the month of March 2010 when defendant didn't pay the rent to him and again arose on every subsequent month after March 2010 when defendant neither paid the rent not vacated the premises. It further arose on 05.03.2010, 29.05.2010 when plaintiff sent notices to defendant and again arose on 24.07.2010 when plaintiff sent a legal notice Page 16 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 and when defendant sent a vague reply dated 08.06.2010 as well as on 07.09.2010 when defendant through letter promised to vacate the premises & clear all dues up to 30.09.2010. The cause of action again arose on 30.09.2010 when defendant failed to deliver the vacant possession of tenanted premises & clear due as well as on 07.10.2010 when he handed over the possession to plaintiff and paid Rs 16,500/- by cheque and lastly, it is averred that the cause of action is still continuing.
It is settled law that cause of action consists of a bundle of facts which gives a ground to enforce a legal right which plaintiff must prove so as to get judgment in his favour. In order to decide whether a suit has a subsisting cause of action or not, the court has to look at the plaint and nothing else. Further, there is a difference between a plea that the plaint does not disclose a cause of action and a plea that there is no cause of action for instituting a suit. For determining whether the plaint discloses the cause of action or not, averments in the plaint alone are relevant and material. Now, on perusal of the present plaint and materials available on record, the Court is of the view that there does exist a cause of action in favour plaintiff i.e. non- payment of mesne profits/damages and maintenance charges by defendant for which plaintiff is entitled to file the present suit against him for recovery of the same as discussed in the preceding paragraph. Accordingly, issue no. 3 is decided in favour of plaintiff and against defendant.
Issue no.4: Whether this court has no territorial jurisdiction to try this suit? OPD
11) The onus to prove this issue was on defendant. It is averred by defendant in his written statement that the suit property is situated at Azadpur, Delhi which comes within the jurisdiction of P.S. Adarsh Nagar, Delhi which comes within North-West District. It is further averred that defendant is a resident of Pitampura, Delhi and therefore, this Court doesn't have territorial jurisdiction to try & entertain the present suit. Further, defendant in his written arguments has relied upon Section 16(a) of CPC and submitted that no cause of action has arisen within the territorial jurisdiction of this Court.
Page 17 of 19 (Sonam SinghII)Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 Section 16(a) of CPC provides for the suit to be instituted in the Court within the local limits of whose jurisdiction the property is situated when the relief claimed pertains to the recovery of immovable property with or without rent or profits, whereas, the relied claimed by plaintiff in the present suit is only for recovery of arrears of rent/damages/mesne profits & maintenance and for recovery of the suit/tenanted premises, and therefore, Section 16(a) of CPC shall not be applicable herein. Moreover, when the documents relied upon by defendant in his evidence are perused, namely, Ex. DW1/1 which is the letter of defendant to plaintiff qua payment of cheque for Rs 16,500/- towards full & final settlement of rent, Ex. DW1/3 which is the reply of defendant to plaintiff, Mark K which is defendant's notice dated 07.09.2010 for discontinuing the rental association to plaintiff's father as also when the documents of correspondence on behalf of plaintiff to defendant/his firm are perused, it transpires that they all bear the address of plaintiff as that of Rajpur Road, Delhi, thereby implying that cause of action also arose within the jurisdiction herein. In any case, nothing has been proved or even stated by defendant in his written statement as to the prejudice or failure of justice caused to him qua the trial of suit by this Court. Thus, in view of aforesaid discussion, Issue no.4 is decided against defendant and in favour of plaintiff.
Relief:
12) On the basis of appreciation of evidence discussed above and in light of findings arrived herein, particularly, on Issues no. 1 & 2 the present suit instituted by plaintiff against defendant is decreed to the extent of recovery of Rs 57,000/- as maintenance charges along with simple interest @ 6% p.a from the date of institution of suit till realisation of the said amount.
13) Decree sheet be prepared accordingly. 14) File be consigned to Record Room after due compliance. Page 18 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi Suraj Singh Jain vs. Dilbahar Singh Arora CS SCJ 93267/16 Digitally signed SONAM by SONAM SINGH SINGH Date: 2022.07.05 15:59:26 +0530 Pronounced in open court: (Sonam Singh-II) Dated: 05.07.2022 Civil Judge-07, Central, Tis Hazari Courts, Delhi
Note: This Judgment contains nineteen pages and all the pages have been checked and signed by me. Digitally signed by SONAM SONAM SINGH SINGH Date:
2022.07.05 15:59:34 +0530 (Sonam Singh-II) Civil Judge-07, Central, Tis Hazari Courts, Delhi Page 19 of 19 (Sonam SinghII) Civil Judge07, Central, Delhi