Delhi District Court
Sh. Jaspal Singh vs Sh. Mukesh Goyal & Mr. Jain on 27 January, 2015
Suit No. 27/14
IN THE COURT OF MS. SHEFALI SHARMA CIVIL JUDGE
(NORTH): ROHINI COURTS: DELHI
Suit No.27/14
Sh. Jaspal Singh,
S/o Sh. Harkishan Singh,
R/o D3/5,
Model TownIII,
Delhi110009
Plaintiff
Versus
Sh. Mukesh Goyal & Mr. Jain
S/o Sh. Ram Parshad Goyal,
R/o E264,
100 Ft. Road,
Babar Pur,
Shahdara,
Delhi110032
2. S.H.O./S.I. Sachin Man
P.S. Samay Pur Badli,
Delhi
........Defendant
Date of Institution : 31.01.2014
Date Reserve for orders : 27.01.2015
Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 1/14
Suit No. 27/14
Date of Decision : 27.01.2015
Ex Parte Judgment
This is suit for declaration and mandatory and permanent
injunction filed by the plaintiff against the defendants.
Brief facts are that:
CASE OF THE PLAINTIFF
(1) That the plaintiff is the owner of one shop bearing private no.
6, on the ground floor, without roof right, size measuring 8'x21', part of
built up property bearing no. A82, situated in the area of Village Azad Pur,
Colony, known as Kewal Park extension, previously known as Majlish
Park, Azad Pur, Delhi110033, vide registered sale deed, registered as
document No. 2025, in Additional Book No. 1, Volume No. 564 on page
147 to 152 dated 27th March, 1998 in the office of the SubRegistrar, Delhi.
That the defendant no. 1 had approached the plaintiff to let him out on rent
the said shop bearing private no. 6, on the ground floor, without roof right,
size measuring 8'x21', part of built up property bearing no. A82, situated in
the area of village Azad Pur Colony, Known as Kewal Park extension,
previously known as Majlish Park, Azad Pur, Delhi110033, to which the
plaintiff had agreed to let out the same vide rent deed dated 25 th June, 2013
Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 2/14
Suit No. 27/14
at a monthly rent of Rs. 14,000/ (Rupees Fourteen Thousand Only) per
month excluding of electricity, water and other charges. That the tenancy
of the defendant no. 1 pertaining to the aforesaid shop commenced from
1.7.2013 for a period of three years and monthly rent of the demise premises was to be increased by 10 % after the expiry of each successive years. The said property was let out by way of rent deed duly registered with the SubRegistrar, Delhi. It came to the knowledge of the plaintiff that defendant no. 1 had committed some fraud and cheating and FIR bearing no. 529 dated 21.10.2013 had been registered against him under section 420/406/34 IPC, with P.S. Samay Pur Badli. In this regard, defendant no. 2, S.I. Sachin Man on 24.10.2013 approached the plaintiff and took away the registered rent executed between the plaintiff and the defendant no. 1 and the police put their own lock on the said shop. That the defendant no. 1 had paid rent for the month of July and August, 2013, thereafter, stopped making payments and the possession of the shop was taken by the police official in the FIR No. 529/13. Thereafter the plaintiff had issued the legal notice Under Section 106 of Transfer of Property Act to the defendant no. 1 on 30.09.2013 and the tenancy of the defendant no. 1 was terminated and the defendant no. 1 was asked to hand over the peaceful and vacant possession of the said tenanted premises but the defendant no. 1 has not Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 3/14 Suit No. 27/14 handed over the said shop and the defendant no. 1 was liable to hand over the peaceful and vacant possession of the said tenanted shop. That the plaintiff had moved an application for return of the keys of the aforesaid shop lying with the defendant no. 2 in the Court of Sh. Chanderjeet Singh, Ld Metropolitan Magistrate, Rohini Courts, Delhi on 27.11.2013 and the said application was disposed off vide order dated 3.12.2013 with the direction that the plaintiff is at liberty to move to the appropriate court of law for taking the possession of the premises in question. Eventually the plaintiff filed the present suit.
CASE OF THE DEFENDANT (2) Thereafter defendant no. 1 was served by means of publication in the newspaper "Statesman" however none appeared on behalf of the defendant no. 1 and eventually he was proceeded against exparte vide order dated 8.9.2014.
Defendant no. 2, S.I. Sachin Man P.S. Samay Pur Badli, filed his status report according to which upon a complaint of one Sh. Kishore Ramesh Pandilwar, against the tenant of the plaintiff herein Mr. Jain @ Mukesh Goel an FIR no. 529/13 had been registered under section 406/420/468/471/411/34 IPC, P.S. Samay Pur Badli. It is stated that during the investigation the address Shop No. A82, Ground Floor, Kewal Park, Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 4/14 Suit No. 27/14 Delhi was visited and it was found locked. On inquiry from the neighbours it was also known that the said premises/shop was owned by one Mr. Jaspal Singh Son of Sh. Harikishan Singh R/o D3/5, Model TownIII, Delhi, and that he had lent off the shop situated at Shop No. 6, A82, Ground Floor, Kewal Park, Delhi, to one Mr. Mukesh Goyal S/o Sh. Ram Prasad Goyal R/o E264, 100 feet Road, Babarpur, Shahdra, Delhi, and also provided the original rent deed. As per the rent deed provided by owner Jaspal Singh the said premises has been lent on rent to Mukesh Goyal from 1.7.2013 for three years. The address provided by Mukesh Goyal i.e. E264, 100 Feet Road, Babarpur , Shahdra, Delhi, was visited and it was found that one Vijal Pal Arya S/o Late Sh. Garib Chand was residing at the said address who further stated that he neither knows any person by the name of Mukesh Goyal nor any such person have ever resided in his house ever. However, Mukesh Goyal was yet to be arrested and there was no clue found regarding his whereabouts.
(3) Issues:
Following issues are framed vide order dated 1.11.2014.
(i) Whether the suit is entitled to the possession as prayed? OPP.
(ii) Whether the suit is entitled for mesne profits/damages at what
Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 5/14
Suit No. 27/14
rate and what period? OPD
(iii) Whether the suit is entitled for recovery of rent as prayed for if
yes at what rate and what period? OPP
(iv) Whether the suit is entitled to relief of mandatory injunctions
as prayed for? OPP
EVIDENCE ON BEHALF OF PLAINTIF
(4) Thereafter, the plaintiff examined himself as PW1 and relied
upon documents Ex PW1/1 to EX PW1/7.
PW1/1 is a registered sale deed.
PW1/2 is a copy of the rent deed executed between the plaintiff and the defendant dated 25.06.2013.
PW1/3 is a copy of the FIR.
PW1/4 is a seizure memo.
PW1/5 is a legal notice of termination of tenancy.
PW1/6 is a copy of the application filed by the plaintiff before the Ld MM.
PW1/7 is a copy of the site plan.
Defendants did not come forward despite sufficient opportunities to crossexamine the PW1 and no defendant evidence has Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 6/14 Suit No. 27/14 been adduced.
My issues wise findings are as follows:
Issue no. (i): Whether the suit is entitled to the possession as prayed? OPP.
The onus to prove this issue was upon the plaintiff. Plaintiff vide the testimony of PW1 has proved that that the plaintiff is the owner of one shop bearing private no. 6, on the ground floor, without roof right, size measuring 8'x21', part of built up property bearing no. A82, situated in the area of Village Azad Pur, Colony, known as Kewal Park extension, previously known as Majlish Park, Azad Pur, Delhi110033, vide registered sale deed, registered as document No. 2025, in Additional Book No. 1, Volume No. 564 on page 147 to 152 dated 27 th March, 1998 in the office of the SubRegistrar, Delhi. That the defendant no. 1 had approached the plaintiff to let him out on rent the said shop bearing private no. 6, on the ground floor, without roof right, size measuring 8'x21', part of built up property bearing no. A82, situated in the area of village Azad Pur Colony, Known as Kewal Park extension, previously known as Majlish Park, Azad Pur, Delhi110033, to which the plaintiff had agreed to let out the same vide rent deed dated 25th June, 2013 at a monthly rent of Rs. 14,000/ (Rupees Fourteen Thousand Only) per month excluding of electricity, water and other charges. That the tenancy of the defendant no. 1 pertaining to the Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 7/14 Suit No. 27/14 aforesaid shop commenced from 1.7.2013 for a period of three years and monthly rent of the demise premises was to be increased by 10 % after the expiry of each successive years. The said property was let out by way of rent deed duly registered with the SubRegistrar, Delhi.
It came to the knowledge of the plaintiff that defendant no. 1 had committed some fraud and cheating and FIR bearing no. 529 dated 21.10.2013 had been registered against him under section 420/406/34 IPC, with P.S. Samay Pur Badli. In this regard, defendant no. 2, S.I. Sachin Man on 24.10.2013 approached the plaintiff and took away the registered rent executed between the plaintiff and the defendant no. 1 and the police put their own lock on the said shop. That the defendant no. 1 had paid rent for the month of July and August, 2013, thereafter, stopped making payments and the possession of the shop was taken by the police official in the FIR No. 529/13. Thereafter the plaintiff had issued the legal notice Under Section 106 of Transfer of Property Act to the defendant no. 1 on 30.09.2013 and the tenancy of the defendant no. 1 was terminated and the defendant no. 1 was asked to hand over the peaceful and vacant possession of the said tenanted premises but the defendant no. 1 has not handed over the said shop and the defendant no. 1 was liable to hand over the peaceful and vacant possession of the said tenanted shop. That the plaintiff had Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 8/14 Suit No. 27/14 moved an application for return of the keys of the aforesaid shop lying with the defendant no. 2 in the Court of Sh. Chanderjeet Singh, Ld Metropolitan Magistrate, Rohini Courts, Delhi on 27.11.2013 and the said application was disposed off vide order dated 3.12.2013 with the direction that the plaintiff is at liberty to move to the appropriate court of law for taking the possession of the premises in question. Eventually the plaintiff filed the present suit. From the copy of the sale deed Ex as PW1/1 it is clear that plaintiff is the owner of the suit property. The said fact is that further corroborated by the status report filed by the defendant no. 2, S.I. Sachin Man which was filed after carrying out due investigation. Further from the rent deed Ex as PW1/2 the plaintiff has proved that he had let out the suit shop to the defendant on rent for a monthly for a sum of Rs. 14,000/ excluding water, electricity charges for a period of 3 years with effect from 1.7.2013. From the legal notice Ex as PW1/5 the plaintiff has undisputably proved that the legal tenancy of the defendant had been terminated. Further the plaintiff is filed the copy of the application Ex PW1/6 which also been corroborating with the report of the defendant no. 2 that the premises of the plaintiff is left locked and that defendant, Sh. Mukesh Goyal is absconding in the criminal case and his whereabouts could not be traced out. In these circumstances, the plaintiff was constrained to file the present suit to obtain Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 9/14 Suit No. 27/14 the possession of suit shop by taking the legal recourse.
Despite sufficient opportunities, none of the defendants came forward to crossexamine the plaintiff. In these circumstances, the testimony of the plaintiff remains uncontroverted and unrebutted and hence this issue is decided in favour of the plaintiff and against the defendant. Issue No. (ii): Whether the suit is entitled for mesne profits/damages at what rate and what period? OPD Issue No (iii):Whether the suit is entitled for recovery of rent as prayed for if yes at what rate and what period? OPP The onus to prove these issues were upon the plaintiff. The plaintiff has proved that rent deed EX as PW1/2 which is not disputed by defendant no. 1 according to the said rent deed which is a registered document the monthly rent was fixed as Rs. 14,000/ per month and that the tenancy was to commence there July, 2013 for a period of 3 years and it was further agreed that rent would be increased by 10 % after expiring of successive year. The relevant portion of the rent deed reproduced herein That the tenancy commences as from 1.7.2013 for a period of 3 years. That the monthly RENT of the demised premises shall be increased by 10 % after the expiry of each successive year. Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 10/14 Suit No. 27/14 This fact has not been controverted by the defendant no. 1. Even otherwise the said rent deed is registered agreement and as per Section 92 of the Evidence Act it is the document which speaks for itself vide the testimony of the PW1 the plaintiff has proved that defendant paid the rent only till the month of August, 2013 and in these circumstances, the plaintiff is entitled for rent from the months of September, 2013 till filing of the present suit for January, 2014. Keeping in view of the terms and conditions of the rent agreement the plaintiff is entitled to the monthly rent of Rs. 14,000/ from the September, 2013 to January, 2014.
The plaintiff also prays that the damages and mesne profit. Although no substantial evidence has been led by plaintiff in this regard. There is no avernment as to what damage has been caused or what is the assessment of the same. But it is duly proved that premises has been lying locked since October, 2013. In these circumstances, it is clear that if the plaintiff landlord would have rented the shop to some 3rd party, it would have fetched some rent. Although not an iota of oral or documentary evidence has been adduced by the plaintiff to show what would have been the prevalent rent in neighbouring shops similarly situated and located, yet in common parlance and in view of the gradual appreciation of rental values the plaintiff is entitled to mesne profits to the tune of Rs. 8000/ per month Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 11/14 Suit No. 27/14 in addition from October, 2013 when the premises was locked till realization.
Issue no. (iv):Whether the suit is entitled to relief of mandatory injunctions as prayed for? OPP The onus to prove this issue was upon the plaintiff. As per the version of the plaintiff, the plaintiff states that it is defendant no. 2, S.I. Sachin Man who in course of the investigation in FIR 529/13 dated 21.10.2013 P.S. Samay Pur Badli under section 406/420/468/471/411/34 IPC, P.S. Samay Pur Badli, lodged against the defendant no. 1 put lock on the suit premises. In support of the same the plaintiff has filed the application before Ld MM for a removal of the lock wherein he was advised to take recourse to the court law for obtaining his possession. The application is Ex as PW 1/6. In the status report filed on behalf of the defendant no. 2, the fact that suit premises is locked stands proved. But the issue which arises is whether the lock is put by the defendant, Mukesh Goyal or by the police S.I. Sachin Man. The status report is completely silent on this aspect. Undisputedly, the plaintiff is a bonafide landlord and is entitled to the possession of his shop as is observed in my findings in issue no. 1. In these circumstances, the plaintiff may remove the lock of the said suit shop as per law but with prior intimation to the concerned Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 12/14 Suit No. 27/14 SHO,PS. Samay Pur Badli and prepare an inventory of articles if any in presence of the concerned police official who may take necessary action as per law. Plaintiff would also be at liberty to move the appropriate forum as per law and as per rules for sale of the seized articles of defendant no. 1 if any for recovery of the arrears of rent/mesne profits in case of nonpayment by the defendant no. 1 but ensure that due course of law is followed. Relief: The suit of the plaintiff is decreed. The plaintiff is entitled to the possession of the suit property bearing no. private no. 6, on the ground floor, without roof right, size measuring 8'x21', part of built up property bearing no. A82, situated in the area of Village Azad Pur, Colony, known as Kewal Park extension, previously known as Majlish Park, Azad Pur, Delhi110033, against the defendants, their agents etc. The plaintiff is also entitled to the decree of arrears of rent with effect from September, 2013 to January, 2014 at the rate of Rs. 14,000/ per month. The plaintiff is also entitled to mesne profit to the tune of Rs. 8000/ per month from October, 2013 till realization. Further the plaintiff may remove the lock of the said suit shop as per law but with prior intimation to the concerned SHO,PS. Samay Pur Badli and prepare an inventory of articles if any in presence of the concerned police official who may take necessary action as per law. Plaintiff would also be at liberty to move the appropriate forum as per law Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 13/14 Suit No. 27/14 and as per rules for sale of the seized articles of defendant no. 1 if any for recovery of the arrears of rent/mesne profits in case of nonpayment by the defendant no. 1 but ensure that due course of law is followed. Decree sheet be prepared accordingly. Parties to bear their own litigation. File be consigned to record room.
Pronounced in the open court today on 27.01.2015 (SHEFALI SHARMA) CIVIL JUDGE (NORTH) ROHINI,DELHI/27.01.2015 Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 14/14 Suit No. 27/14 CS No:27/14 Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 27.01.2015 Present: None.
Vide this separate judgment even date the suit of the plaintiff is decreed. The plaintiff is entitled to the possession of the suit property bearing no. private no. 6, on the ground floor, without roof right, size measuring 8'x21', part of built up property bearing no. A82, situated in the area of Village Azad Pur, Colony, known as Kewal Park extension, previously known as Majlish Park, Azad Pur, Delhi110033, against the defendants, their agents etc. The plaintiff is also entitled to the decree of arrears of rent with effect from September, 2013 to January, 2014 at the rate of Rs. 14,000/ per month. The plaintiff is also entitled to mesne profit to the tune of Rs. 8000/ per month from October, 2013 till realization. Further the plaintiff may remove the lock of the said suit shop as per law but with prior intimation to the concerned SHO,PS. Samay Pur Badli and prepare an inventory of articles if any in presence of the concerned police official who may take necessary action as per law. Plaintiff would also be at liberty to move the appropriate forum as per law and as per rules for sale of the Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 15/14 Suit No. 27/14 seized articles of defendant no. 1 if any for recovery of the arrears of rent/mesne profits in case of nonpayment by the defendant no. 1 but ensure that due course of law is followed. Decree sheet be prepared accordingly. Parties to bear their own litigation. File be consigned to record room.
(SHEFALI SHARMA) CIVIL JUDGE NORTH ROHINI/27.01.2015 Sh. Jaspal Singh Vs Sh. Mukesh Goyal & Mr. Jain 16/14