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[Cites 4, Cited by 0]

Delhi District Court

Smt. Pooja Sharma vs Sh. V. K. Sharma on 8 April, 2015

                             IN THE COURT OF JAGDISH KUMAR
                                   ADJ-06 (WEST): DELHI

RCA No.                                              :      04/15
Unique Case ID No                                    :      02401C0041662015

In the matter of:

Smt. Pooja Sharma
W/o Sh. Ankur Sharma
R/o BB-1C, Shalimar Bagh (West)
Delhi                                                                           .............. Appellant

          Versus

1.      Sh. V. K. Sharma
        S/o Late Sh. Udey Veer Sharma
        R/o 17 G/ 133, Vasundhra
        Ghaziabad, U.P.

2.       Sh. Ankur Sharma
         S/o Sh. S. K. Sharma
         R/o BM-30, Shalimar Bagh
         Delhi                                                                  ............ Respondents


Date of institution of the Appeal                           :         22.01.2015
Date of arguments                                           :         06.04.2015
Date of decision                                            :         08.04.2015

JUDGMENT :

-

1. This judgment shall dispose of the appeal filed by the appellant against the judgment/ decree dated 22.12.2014 being passed by the Ld. Trial Court against the appellant.

2. Facts necessary for disposal of the appeal are that respondent no. 1 RCA No. : 04/15 Page 1/11 has filed a suit for recovery of possession and recovery of rent and damages against the appellant and respondent no. 2. It is stated in the suit that respondent no. 1 is owner of flat bearing no. BB-1C, Shalimar Bagh, West, Delhi (hereinafter called the suit property). The respondent no. 2 Sh. Ankur Sharma (defendant no. 1) was inducted as tenant in the suit property on 15.05.2007 at a monthly rent of Rs. 4,200/- p.m. excluding electricity and water charges. A rent agreement was also executed between the respondent no. 1 and respondent no. 2. The said agreement was taken by the respondent no. 2 along with him on the pretext to get signature of his father as witness but same has not been returned thereafter. The respondent no. 1 alleged that respondent no. 2 has not paid rent since 15.07.2007. When the respondent no. 2 had not paid the rent then respondent no. 1 had visited the suit property through his wife and wife of the respondent no. 1 found the appellant in the possession of the suit property. The respondent no. 1 alleged in the plaint that respondent no. 2 has threatened his wife of dare consequences if she again came to demand the rent. The tenancy commenced from 15th of each calender month and ending on 14th day of its following month.

3. The tenancy of the respondent no. 2 was terminated vide legal notice w.e.f mid night of 14.06.2008 but the respondent no. 2 as well as appellant had not taken the delivery of legal notice deliberately. However, legal notice was served under certificate of posting upon the appellant and respondent no. 2. The respondent no. 1 alleged that a sum of Rs. 50,400/- has become due as arrear of rent w.e.f. 15.07.2007 till 14.07.2008 which the respondent no. 1 and appellant have failed to pay. Hence, the present suit has been filed.

RCA No. : 04/15 Page 2/11

4. Summons of the suit were issued to the appellant as well as respondent no. 2. They have put their appearance and filed their written statements.

5. The respondent no. 2 has took the objection that suit is not maintainable because the rent agreement is not duly stamped. It is further stated by respondent no. 2 that he has paid the rent up to 15.04.2008 and not up to 15.07.2007 as alleged by the respondent no. 1 (plaintiff). The respondent no. 1 had never issued any rent receipt. The respondent no. 2 further submitted that rent for the very first month along with security deposit of Rs. 15,000/- was collected by the respondent no. 1 (plaintiff) himself at the time of signing of rent agreement. Subsequently, the respondent no. 1 collected the rent every month through his wife and son Pranav, as respondent no. 1 was posted somewhere in Orissa. But no rent receipt was issued. The respondent no. 2 alleged that on 12.11.2007 he was compelled by the appellant to leave the suit property. The respondent no. 2 further alleged that in the month of March 2008 when respondent no. 1 had come to collect the rent for the period from 16.03.2008 to 15.04.2008 the respondent no. 1 asked to him to renew the rent agreement expiring on 15.04.2008 which was declined by the respondent no. 2. The respondent no. 2 further stated that since he has vacated the suit property and given symbolic possession to the respondent no. 1 in the month of March 2008 itself and consequently he has discharged his obligations under the rent agreement. It is also stated that the respondent no. 1 has also entered into a fresh oral rent agreement with appellant. The respondent no. 2 has prayed for dismissal of the suit.

6. The appellant has also filed a detailed written statement and took the RCA No. : 04/15 Page 3/11 preliminary objection that she is not necessary party as suit property was let out to respondent no. 2 and appellant was not party to the said agreement. Hence, there is no privity of contract between her and respondent no. 1. It is also contended by the appellant that there is no cause of action against her. It is further contended by the appellant that respondent no. 1 has filed the present suit in collusion with respondent no. 2 so that the appellant could be deprived of a residential house at the cost of respondent no. 2. It is further contended by the appellant that she is legally wedded wife of respondent no. 2 and respondent no. 2 had made a statement before Hon'ble High Court of Delhi that he would make the payment of the rent of the suit property to the respondent no. 1.

7. It is further contended by the appellant that respondent no. 1 had not filed any document on record to prove that rent has been paid by the respondent no. 2 up to 14.07.2007. The appellant further stated that she has never given any threat to the wife of respondent no. 1. The appellant further stated that she has not received any legal notice dated 14.06.2008. She further contended that she is not tenant at the suit property rather it is respondent no. 2 who is tenant. She further stated that she is not liable for paying any amount on account of either rent, mesne profit, damages or interest thereon. She prayed for dismissal of the suit.

8. The respondent no. 1 has filed replication to the WS of appellant as well as of respondent no. 2 and denied the contents as alleged by the appellant and reaffirmed and reiterated the facts and stated in the plaint.

9. On the pleadings of the parties, the following issues were framed by Ld. Trial Court on 02.11.2012 RCA No. : 04/15 Page 4/11

1.) Whether the plaintiff is entitled for the decree of possession as prayed for? OPP

2.) Whether the plaintiff is entitled for the money decree as prayed for? OPP

3) Relief

10. Evidence Respondent no. 1 has examined himself as PW1 and relied upon the copy of the allotment letter and possession letter issued by DDA as Ex . PW1/1 and Ex. PW1/2, site plan as Ex. PW 1/3, notice dated 30.03.2010 U/o 12 Rule 8 CPC issued by defendant no. 1 as Ex. PW1/5 and postal receipt as Ex. PW1/7, true mechanical copy of the rent agreement duly signed by the defendant no. 1 as Ex. PW 1/8, notice dated 06.05.2008 as Ex. PW 1/9 and postal receipts as Ex. PW1/10 & as Ex. PW1/11 and UPC receipt as Ex. PW1/12.

Respondent no. 2 has examined himself as DW1. He relied upon the documents i.e. copy of letter dated 25.09.09 addressed to the counsel of respondent no. 1 and photocopy of the envelope are Ex. DW1/1 (colly.)

11. I have heard Ld. Counsel for appellant and Ld. Counsel for the respondents and given my thoughtful consideration to the submission made by them. I have also carefully gone through the material available on record. My issue wise findings are as under:-

Issue No. 1
1.) Whether the plaintiff is entitled for the decree of possession as prayed for? OPP The onus to prove this issue is upon the respondent no. 1 (plaintiff).
RCA No. : 04/15 Page 5/11

The respondent no. 1 has filed the present suit for possession. First of all, I would like to draw the attention to the established preposition in Law that in Delhi, under the General Law, three ingredients have to be proved by the land lord to get possession of the tenanted premises from the tenant.

Firstly, he has to prove that there is relationship between himself and the tenant as of landlord and tenant. Secondly, the rent of the tenanted premises is more than Rs. 3,500/-. Thirdly, the tenancy has duly been determined.

So, the First question which has to answered by the Court is whether there is relationship of landlord and tenant between the respondent no. 1 and appellant as well as respondent no. 2. A decree for possession, against the respondent no. 2 as well as appellant, was passed by the Ld. Trial Court U/o 12 rule 6 CPC. The respondent no. 2 has not challenged the decree for possession being passed against him. So, the decree against respondent no. 2 got finality. Since the appellant has challenged the eviction decree being passed U/o 12 Rule 6 CPC which was set aside by the Ld. Appellate Court qua appellant and case was remanded back for trial against the appellant.

On perusal, in the written statement the appellant has not denied the relationship of landlord and tenant between the respondent no. 1 and 2. She merely stated that she is unable to admit or deny the relationship of landlord and tenant between respondent no. 1 and respondent no. 2. In the entire WS there is no whisper or denial by the appellant regarding the relationship of landlord and tenant between respondent no. 1 and respondent no. 2. On the other hand, it is the admitted case by the respondent no. 2 that he was tenant of the respondent no. 1. So, it is proved on record that respondent no. 2 was tenant of respondent no. 1. It is argued by the Ld. Counsel for RCA No. : 04/15 Page 6/11 appellants that there was a collusion between the respondent no. 1 and respondent no. 2 to oust the appellant from the suit property. It is further argued by the Ld. Counsel for appellant that in case the respondent no. 2 is not contesting the suit the appellant has right to contest the suit to defend his possession. The Ld. Counsel for appellant has relied upon the judgment of Hon'ble Supreme Court of India titled as B. P. Achla Anant Vs. S. Appi Reddy & Ors. Appeal (Civil) 4250 of 2000 dated 11.02.2005. I have gone through the judgment carefully and with utmost regard. The Hon'ble Supreme Court of India has observed in that case (Supra) as ''In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claims trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject.'' The judgment is distinguishable on basis of Law applicable to the facts of that case because in that suit the tenancy was protected under the 'Karnataka Rent Control Act, 1961' (hereinafter called the Act). The original tenant in that suit i.e. husband of B. P. Achla Anant was not contesting the RCA No. : 04/15 Page 7/11 suit and since her husband was entitled to retain the possession of the tenanted premises under the 'Karnataka Rent Control Act, 1961', subject to provision of the Act i.e. Rent Control Legislation. Hence, wife was given rights to contest the suit on the same footing as her husband was having rights in the suit property. Here, in the present suit the suit has been filed by the respondent no. 1 under the general law of Transfer of Property Act. Even otherwise, if the argument of the Ld. Counsel for appellant is accepted that the respondent no. 1 cannot evict the appellant from the suit property then the tenancy will goes in perpetuity till the matrimonial status of appellant and respondent no. 2 is not become otherwise. The respondent no. 1 cannot be left the victim of the acts and omission of the appellant as well as respondent no. 2.

Even otherwise, in view of the judgment of Hon'ble Supreme Court of India B. P. Acha Anand Vs. S. Appi. Reddy & ors. (Supra) the appellant was having rights only which were available to her husband i.e. respondent no. 2 and not more than that. For the sake of argument if it is admitted to be correct that appellant steps into the shoes of respondent no. 2 then a status of the appellant will be of as tenant at the most. So, in that eventuality it is also proved that there is relationship of landlord and tenant between respondent no. 1 and respondent no. 2 or appellant.

The next question which has to be answered by the court is whether the rent of the suit property is more than Rs. 3,500/-p.m. The respondent no. 2 has not denied the assertion as made by the respondent no. 1 in the plaint and as deposed in his examination qua the rate of rent i.e. 4,200/-p.m. The appellant has also no where disputed the rate of rent as of Rs. 4,200/- p.m. Moreover, in the cross examination of PW1 no question has been put by the appellant on the fact of rate of rent as deposed by the PW1 in his examination. It amounts to admission of a fact on the part of appellant.

RCA No. : 04/15 Page 8/11

Rather, the respondent no. 2 has put certain questions to the PW1 in his cross examination and which has been answered by the witness as ' Further Rs. 84,00/- was paid in advance for the rent of two months. No rent receipts were issued by me with respect to Rs. 8400/- paid to me. 'This deposition in itself proves that rate of rent was Rs. 4200/- p.m. So it is proved on record that rate of rent of suit property was Rs. 4200/- p.m. The next question is whether legal notice was served upon appellant and respondent no. 2. This fact has not been argued by the Ld. Counsel for appellant even not disputed before me. Even otherwise in view of the judgment of Hon'ble Supreme Court of India in case titled as Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) 1 (2008) SLT 195 the filing of the suit for eviction in itself amounts to a notice for rejectment. So, I am of the considered view that tenancy was duly determined between the parties.

So, in view of the discussion above the respondent no. 1 has been able to prove the essential ingredients for eviction of the appellant as well as respondent no. 1 from the suit property.

It is also argued by Ld. Counsel for appellant that the respondent no. 1 has not moved any application as was directed vide order dated 13.12.2010 by the Ld. Appellate Court qua the appellant at the time of setting-aside the eviction decree passed U/o 12 Rule 6 CPC. The argument of the Ld. Counsel for appellant is not sustainable. Firstly, the appellant could have right only to defend the allegations as were alleged against the respondent no. 2. The allegations against the respondent no. 2 were there in the plaint. There is no necessity to move any application to level any separate allegation against the appellant. Secondly, the respondent no. 1 (plaintiff) is master of his case. He cannot be compelled to incorporate such facts which are not necessary for adjudication of the suit. The allegation as RCA No. : 04/15 Page 9/11 made in the plaint are sufficient to properly adjudicate the dispute between the parties.

So, I am of the view that Ld. Trial Court has rightly decided the issue in favour of respondent no. 1 and against the appellant and respondent no.

2. 12. Issue No. 2

2.) Whether the plaintiff is entitled for the money decree as prayed for? OPP The onus to prove this issue is upon the respondent no. 1. The respondent no. 2 has asserted in his Ws that he has paid the rent till 15.04.2008 and deposed on the same lines in his examination. Nothing has come in his cross examination to rebut the deposition as deposed in examination in chief by him as DW1. Rather the respondent no. 1 i.e. PW1 admitted in his cross examination that he never used to issue any rent receipt to the respondent no. 2. The respondent no. 1 has not challenged the finding as given by the Ld. Trial Court on this issue against him. Even respondent no. 1 has not argued on the observations as given by the Ld. Trial Court. So it is proved on record that respondent no. 2 has paid rent up to 15.04.2008 and subsequently by court order he has paid rent up to 14.12.2010. Thereafter, vide order dated 14.03.2011 the appellant was directed to pay rent w.e.f. 15.12.2010 and onwards @ Rs. 4200/- p.m. Since, it has been observed by the Ld. Trial Court that the appellant has been making payment of rent w.e.f. 15.12.2010 and onwards. It is also observed by the Ld. Trial Court that if there is any arrear of rent the respondent no. 1 may have right to recover the same through execution from appellant. The Ld. Trial Court has also observed that the appellant has to pay the rent till RCA No. : 04/15 Page 10/11 possession is not handed over to the respondent no. 1. I am of the view that Ld. Trial Court has rightly given finding on this issue. I found no fault in the finding of the Ld. Trial Court. Issue is disposed of accordingly.

13. Relief In view of the discussion above I found no fault in the judgment of the Ld. Trial Court. The appeal stands dismissed with cost. The Decree sheet be prepared accordingly. Trial Court record be sent back along with copy of judgment.

File be consigned to record room. 

Announced in the open court                                                   (JAGDISH KUMAR)
today i.e. on 08.04.2015                                                     ADJ-06 (WEST)/DELHI
                                                                             TIS HAZARI COURTS




   RCA No. : 04/15                                                                             Page  11/11