Delhi District Court
Sh. Shyam Lal vs Sh. Arun Kumar on 26 July, 2014
IN THE COURT OF SH. M. P. SINGH, SENIOR CIVIL JUDGE, RENT
CONTROLLER, (EAST), KARKARDOOMA COURTS, DELHI
Suit No. 1249/06
Unique Case ID No. 02402C0242942006
1. Sh. Shyam Lal
2. Sh. Raj Kumar
Both sons of late Om Prakash
Both r/o IX/3523, Gyan Mohalla,
Gali no. 1, Dharampura Chowk,
Gandhi Nagar, Delhi ........... Plaintiffs
Versus
Sh. Arun Kumar
S/o Sh. Brij Mohan
R/o IX/3381/H/6B
Dhundela Chowk, Dharampura,
Gandhi Nagar, Delhi ......... Defendant
Case filed on 02.05.2006
Arguments heard on 09.07.2014
Judgment pronounced on 26.07.2014
JUDGMENT
1. This is a suit for recovery of possession of tenanted premises, rental arrears and damages.
2. Vignette of facts, as unveiled in the plaint, is as follows: Defendant is a tenant under plaintiffs' landlordship qua two rooms and common user of W.C. (as shown in red colour in the site plan Ex. PW1/1) in property no. CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 1 of 23 IX/3381/H/6B, Dharampura, Dhundela Chowk, Gandhi Nagar, Delhi at monthly rental of Rs. 4,000/ exclusive of all other charges. The tenancy is reckoned from 1st day of each English Calendar month and ends on the last day of the month.
3. Plaintiffs aver that whenever the defendant used to pay the rent, he used to obtain an endorsement from either of them, to whom the rent was paid, in a notebook maintained by the latter.
4. Plaintiffs state that the third room situate in the aforesaid property has been under their occupation and its keys always remained with them.
5. It is the allegation that defendanttenant became a habitual defaulter in payment of rentals and that he has not paid or tendered any rent since January, 2005. Plaintiffs then issued a legal notice dt. 01.04.2006 (Ex. PW1/2) through registered post/acknowledgment due and Under Postal Certificate (UPC) to the defendant thereby terminating his tenancy and asking him to vacate the tenanted premises after 15 days of being served with the notice. Additionally, he was also called upon to pay up the rental arrears with effect from 01.01.2005 till date and also to pay damages at the rate of Rs. 10,000/ per month in case he does not evict. Plaintiffs aver that the legal notice Ex. PW1/2 dispatched through registered post/acknowledgment due was received back with report 'addressee not met'. But, the notice dispatched through UPC did not return. Plaintiffs assert that defendant Arun stood served with the legal notice dt. 01.04.2006 (Ex. PW1/2) through UPC for it CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 2 of 23 was not received back despite being correctly addressed. On these averments, plaintiffs seek the following reliefs:
(a) A decree of ejectment in respect of two rooms with common user of W.C as shown red in the site plan of property No. IX/3381/H/6B situated at Dhundela Chowk, Dharampura, Gandhi Nagar, Delhi;
(b) A decree for recovery of Rs. 64,000/ towards arrears of rent as detailed above with interest @ 15% per annum against the defendant for arrears of rent with effect from 01.01.2005 to 30.04.2006.
(c) A decree for pendente lite and future damages @ Rs. 10,000/ per month from the date of filing of the suit till the delivery of possession of the premises in dispute as shown red in the site plan of property no. IX/3381/H/6B situated at Dhundela Chowk, Dharampura, Gandhi Nagar, Delhi.
6. Defendant entered the contest and filed his written statement. He questions plaintiffs' assertions not only qua the quantum of monthly rental, but also the spatial extent of the tenancy. According to him, the tenanted premises, under his occupation, comprises of all the three rooms on the ground floor, including a toilet and veranda. And the third room, as per the defendant, is being used as a kitchencumroom. As regards the monthly rental, he states that it is Rs. 500/ only, inclusive of water charges and property tax. He thus urges that section 50, Delhi Rent Control Act (for short 'DRC Act') bars this Court's jurisdiction.
7. Defendant submits that he has been a tenant for the last about 15 years, but plaintiffs never gave any receipt of rent tendered by him. He vehemently denies that he used to maintain any notebook containing plaintiffs' endorsement of payment of rentals. He avers that he regularly paid rent at the CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 3 of 23 rate of Rs. 500/ per month inclusive of water charges and property tax to plaintiffs since the inception of tenancy till September, 2005, when he stopped paying rent to them as he received a legal notice from one Balwant Singh wherein he claimed himself to be ownerlandlord of the suit property and demanded rentals with effect from October, 2005 from him. Defendant further submits that he deposited the rent for the period between October, 2005 to April, 2006 in the Court of Sh. S. S. Malhotra, Ld. Additional Rent Controller, Delhi as there was a bonafide doubt visavis ownership of the property.
8. As regards plaintiffs' legal notice dt. 01.04.2006 (Ex. PW1/2), defendant states that he did not receive it either through registered post /acknowledgment due or through UPC. He points out that postal authorities had in fact reported on the registered post 'Addressee not known, Refer to Sender'. He thus urges that plaintiffs' averment to the effect that legal notice dt. 01.04.2006 (Ex. PW1/2) sent by registered post/acknowledgment due was returned with remarks 'addressee not met' is factually incorrect. He further states that legal notice dt. 01.04.2006 (Ex. PW1/2) dispatched to the address 'IX/3381/H/6B, Dharampura, Dhundela Chowk, Gandhi Nagar, Delhi' was incorrectly addressed inasmuch as the correct address of the suit property is 'IX/3381/23A, Gali no. 8, Jain Mohalla, Dharampura, Dundela Chowk, Gandhi Nagar, Delhi110031'. Denying other averments, he seeks dismissal of the suit.
CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 4 of 23
9. In their replication, plaintiffs reiterate and reaffirm their stand as set out in the plaint and refute those made by the defendant in his written statement. In addition thereto, they do not dispute defendant's averment that he has been a tenant for the last 15 years under their landlordship. They submit that Sh. Balwant Singh has no right, title or interest in the property in question.
10. The issues, struck on 29.09.2007, are as follows:
1) Whether the plaintiff is entitled to decree of ejectment as prayed for?
OPP
2) Whether the plaintiff is entitled to decree for recovery of arrears of rent? If so at what rate and for what term? OPP
3) Whether the plaintiff is entitled to decree of damages as prayed for? If so at what rate and for what term? OPP
4) Relief.
11. Plaintiff Raj Kumar entered the witness box as PW1. His examination inchief is entirely along the same lines as averred in the body of the plaint. He exhibited the site plan as Ex. PW1/1, carbon copy of the legal notice dt. 01.04.2006 as Ex. PW1/2, postal/UPC receipts as Ex. PW1/3 and Ex. PW1/4 respectively. He also exhibited the envelope containing the legal notice dt. 01.04.2006 that was returned by postal authorities as Ex. PW1/5. House tax bills are Ex. PW1/6 to Ex. PW1/8 and house tax receipts issued by MCD in the name of plaintiff Shyam Lal are Ex. PW1/9 to Ex. PW1/16C. CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 5 of 23
12. Plaintiff Shyam Lal entered the witness box as PW2. His examination inchief is entirely along the same lines as averred in the body of the plaint. Plaintiffs got examined two more witnesses, who are Sh. Bansi Lal (PW3) and Sh. Amrik Singh (PW4).
13. Defendant Arun examined himself as DW1. He reiterated and reaffirmed the stand that he took in his written statement. He exhibited his own site plan as Ex. DW1/1. He also exhibited certified copy of a legal notice dt. 25.08.2005 issued to him by Sh. Balwant Singh's advocate as Ex. DW1/2, certified copy of a police complaint dt. 23.03.2006 as Ex. DW1/3, certified copy of a kalandra as Ex. DW1/4. The rent challan qua deposit of rent by him under section 27, DRC Act is Ex. DW1/5. In his crossexamination defendant (DW1) was confronted with few certified copies (Ex. DW1/P1) out of a civil suit titled as 'Arun Kumar Trivedi vs. Sh. Rajkumar'. Defendant further examined Sh. Vinod Kumar Singh as DW2.
14. I have heard the arguments at Bar and perused the record of the case.
15. Issuewise findings are as under:
16. Issue n o. 1 The issue is whether the plaintiffs prove that they are entitled to an ejectment decree against the defendant qua the tenanted premises as shown in red colour in the site plan Ex. PW1/1. Riding on the assertion that the monthly rental is Rs. 4,000/, plaintiffs urge that the tenancy is out of the purview of DRC Act. On the other hand, defendant contends that the monthly rental, inclusive of property tax and water charges, being Rs. CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 6 of 23 500/ only, he cannot suffer an ejectment decree from this civil Court in view of section 50, DRC Act. Thus, the very first question that is to be addressed to is whether the relief of ejectment as sought for against the defendanttenant is barred by section 50, DRC Act.
17. Before proceeding further, there is one aspect of the instant matter which requires notice. Arguments were advanced at Bar about the spatial extent of tenancy. As per plaintiffs, the tenancy extends to only two rooms with common user of W.C. However, defendant Arun states that the tenancy extends to three rooms, veranda and toilet. Whether the tenancy comprises of the third room too or whether the defendant is a trespasser qua that room is altogether subject matter of a different suit between the parties pending before this Court. That suit is under section 6, Specific relief Act filed by plaintiffs against the defendant on the assertion that the latter trespassed into the third room. It would be apt if this aspect is not prejudged in any manner in the instant suit. It would also be apt if this aspect is best left to be adjudicated upon in that very suit. Suffice to say for the present that this Court intends to proceed ahead entirely and entirely on what the plaintiffs have to say about the spatial extent of the tenancy. This Court shall be examining the merits of the instant suit on the premise that the plaintiffs' averments as regards spatial extent of the tenancy, as depicted in the site plan Ex. PW1/1, are correct.
18. There is no lease deed in writing between the parties. It does not help CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 7 of 23 the plaintiffs that there are neither any rent receipts on record. On this score, all that is there is the oral evidence of both the sides coupled with two lease deeds executed between plaintiff Shyam Lal and PW3 Bansi Lal. Certified copy of these two lease deeds executed between plaintiff Shyam Lal and PW3 Bansi Lal was filed by plaintiffs' counsel after the conclusion of final arguments.
19. As per the plaintiffs, PW3 Bansi Lal came into occupation of a room as a tenant right adjacent to the tenanted portion (as per site plan Ex. PW1/1) in the very same property in year 2002. PW3 Bansi Lal in his evidence states that he had taken the room at monthly rental of Rs. 1,200/ for 11 months in 2002 vide a rent agreement reduced to writing. He further deposes that another rent agreement was executed for a further period of 11 months at monthly rental of Rs. 1,500/. As per his deposition, he had taken the room, of size 8' X 10', on rent for keeping his tent goods. As per the two rent deeds, the tenanted portion under the occupation of PW3 Bansi Lal comprised of a room, latrine, bathroom and a veranda. It is an admitted position of the parties that defendant Arun came into the tenancy in 199192. Plaintiffs' counsel gave a suggestion to the defendant (DW1) in his crossexamination, which was replied as follows, "It is correct that premises in dispute was let out by the plaintiff no. 2 to me in the year 199192." It is also an admitted case of the parties that at the inception of the tenancy in 199192, the property in question did not have electricity connection. PW1 Raj Kumar in CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 8 of 23 his crossexamination admits that there was no electricity connection in the suit property at the inception of the tenancy. It is also an admitted position that all three rooms are somewhat of similar size. The site plan Ex. PW1/1 depicts that the three rooms are more or less of same size. PW2 Shyam Lal in his evidence also states that the third room is about the same size as the other two rooms.
20. Juxtaposing the terms of tenancy of PW3 Bansi Lal with that of the defendant, on preponderance of probabilities, this Court is not inclined to lend credence to plaintiffs' version that defendant's tenancy way back in 199192 commenced at monthly rental of Rs. 4,000/. This is for the following reasons:
(a) If PW3 Bansi Lal was inducted as a tenant in respect of a room, veranda space, latrine and bathroom at monthly rental of Rs. 1,200/ in 2002; then for the two rooms, each of the same size as that of PW3 Bansi Lal, the monthly rental way back in 199192 could not possibly have been Rs. 4,000/. This is more so when the property in question did not have electricity connection.
(b) Even if a charitable and liberal view, favouring the plaintiffs, is taken by discounting the inflation factor between the period 199192 to 2002, yet plaintiffs' version appears to be incredible. Let it be assumed that the general price level that had prevailed in 2002 had also been prevailing ten years ago in 199192. That is to say, during CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 9 of 23 the interregnum of 10 years between 199292 and 2002 there was absolutely no rise in the general price index. Taken from this standpoint, if for one room along with veranda space, the monthly rental is Rs. 1,200/, then for two rooms of similar size, the monthly rental cannot possibly be Rs. 4,000/.
(c) It bears repetition to state that there is no lease deed. There are neither any rent receipts. There is also no income tax returns of either of the plaintiffs reflecting therein the rental income. In short, there is no document whatsoever to evidence even remotely that the monthly rental was/is Rs. 4,000/.
(d) Both PW1 and PW2 assert in their oral testimonies that house tax was paid on the monthly rental of Rs. 4,000/. This oral evidence is not backed by the material on record. The house tax bills and the house tax receipts placed on record by the plaintiffs do not indicate in any manner that the factum of monthly rental of Rs. 4,000/ was indeed taken into account while making the house tax assessments.
21. As per section 3, Evidence Act, a fact is said to be 'proved' when, after considering the matters before it, the Court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In the case at hand, after considering the matters before it, this Court cannot believe plaintiffs' stand of monthly rental of Rs. 4,000/ to exist. Further, from the CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 10 of 23 standpoint of a prudent man, this Court, given the circumstances, can neither act on the supposition that the monthly rental of the two rooms, way back in 199192 without electric supply, was Rs. 4,000/. Accordingly, I hold that it stands 'not proved' that the monthly rental of the tenanted portion under defendant's occupation as per site plan Ex. PW1/1 was/is Rs. 4,000/.
22. It was pointed out by plaintiffs' counsel that the locality, where the tenanted premises is situate, is one amongst the busiest commercial hubs of Asia. In this backdrop, it was urged that the likelihood of the monthly rental being Rs. 4,000/ was more than it being Rs. 500/. This argument cannot be accepted. This sole factor cannot be decisive of the issue at hand. This may have been one corroborating factor in plaintiffs' scheme of things. This factor could have corroborated the other circumstances, provided those other circumstances were sufficient to render plaintiffs' version probable. However, the very bottom of plaintiffs' case appears to be shaky for the reasons aforesaid. That apart, if one room with veranda space in the same property could have been let out at monthly rental of Rs. 1,200/ in 2002, notwithstanding the fact that the locality is a big commercial hub; then it is very probable that two rooms were not let out at monthly rental of Rs. 4,000/ way back in 199192.
23. Plaintiffs' counsel also submitted that the defendant did not respond to the legal notice dt. 01.04.2006 (Ex. PW1/2) whereby his tenancy stood determined under section 106, Transfer of Property Act. Relying upon a CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 11 of 23 decision reported as Kalu Ram vs. Sita Ram, 1980 Rajdhani Law Reporter (Note) 44 it was urged that this amounted to acceptance by the defendant of the averments contained in the legal notice. The sum and substance of plaintiffs' counsel's argument is that inasmuch as the defendant did not reply to the legal notice Ex. PW1/2, all the assertions contained therein, including the assertion that the monthly rental was Rs. 4,000/, is deemed to have been admitted by him. And consequently, it was reasoned, jurisdiction of this Court is not barred by section 50, DRC Act. However, I am not inclined to accept this line of argument for the following reasons.
(a) It cannot be gainsaid that in order to operate as admission the legal notice Ex. PW1/2 must have been received, or presumed to have been received, by the defendant. Such admission(s) cannot be inferred if the legal notice Ex. PW1/2 is shown to have not been received by the defendant. Additionally, such admission(s) can also not be inferred if it cannot be presumed to have been served.
(b) Envelope (Ex. PW1/5) containing the legal notice Ex. PW1/2 sent through registered post/acknowledgment due, that was returned by postal authorities, has the remarks 'Addressee not known, Refer to Sender'. What is therefore clear is that the defendant was not served with the legal notice Ex. PW1/2 through registered post/ acknowledgment due. Plaintiffs' averment in the plaint to the effect that legal notice Ex. PW1/2 dispatched through registered CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 12 of 23 post /acknowledgment due was received back with report 'addressee not met' is factually incorrect and contrary to the record.
(c) Now to service through UPC. Plaintiffs' contention is that the legal notice dispatched through UPC (Ex. PW1/4) was not returned and therefore it is to be presumed that defendant was duly served. Defendant disputes and denies service of the legal notice Ex. PW1/2 upon him through UPC. Section 27, General Clauses Act does not raise any presumption visavis UPC. On the contrary, the Apex Court in State of Maharashtra vs. Rashid B. Mulani (2006) 1 SCC 407 has made certain scathing observations casting doubts over efficacy of service through UPC. It was observed:
A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the post office. But when a mere certificate of posting is sought, no record is maintained by the post office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing antedated seal with the connivance of any employee of the post office is a matter concern. The Department of Posts may have to evolve some procedure whereby a record is maintained showing a serial number, date, sender's name and addressee's name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communication is disputed or denied. (underlined and italicised for emphasis)
(d) Under section 114, Evidence Act a Court 'may' presume CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 13 of 23 existence of any fact which it thinks likely to have happened. Dispatch of the legal notice Ex. PW1/2 through UPC is vehemently disputed and denied and, for reason aforesaid, it would be highly unsafe to take the route of presumption under section 114, Evidence Act to hold that the defendant was indeed served. I, therefore, hold that the defendant cannot be presumed to have been served through UPC with the legal notice Ex. PW1/2. And in this view of the matter, the defendant could not possibly have been expected to offer any reply to the legal notice Ex. PW1/2. Consequently, there has been no failure on defendant's part to reply to the legal notice Ex. PW1/2 and thus the averments contained therein cannot be said to have been admitted by the defendant.
(e) Statement of defendant (DW1) in his crossexamination to the effect that he could not recollect if the notice Ex. PW1/2 was served upon him cannot ipso facto be sufficient to hold that he was indeed served through UPC. This is more so when no presumption is attached to service through UPC, but on the contrary service through it has been held to be doubtful. This statement can neither be construed as an admission of service of the legal notice.
24. Plaintiffs' counsel contended that the fact that there is no rent receipt showing monthly rental of Rs. 500/ only goes to probablise plaintiffs' version that monthly rental was/is Rs. 4,000/ and not Rs. 500/. It was CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 14 of 23 further his submission that the defendant ought to have taken recourse to section 26, DRC Act if rent receipt was not being issued to him. It was thus urged that the fact that defendant has no receipt of Rs. 500/ only goes to show that his averment about the rental being Rs. 500/ is unfounded. This line of argument cannot be accepted for multiple reasons. Firstly, a plaintiff must stand on his own legs. A plaintiff cannot seek to build the edifice of his case upon the weaknesses and shortcomings in defendant's stand. Decisions reported as Sankar Kumar & Anr. vs. Mohanlal Sharma, AIR 1998 Orissa 117, State of West Bengal vs. Subimal Kumar Mondal & Anr., AIR 1982 Cal 251 and Sayed Muhammed Mashur Kunhi Koya Thangal vs. Badagara Jumayath, JT 2004 (6) SC 556 can be referred to in this regard. Secondly, the onus is not upon the defendant to disprove plaintiffs' version qua the monthly rental being Rs. 4,000/. Rather, the onus is squarely upon the plaintiffs themselves to prove their own case that the monthly rental is Rs. 4,000/. Now, the defendant cannot be obligated to disprove plaintiffs' stand and that too without the latter not discharging their burden. This issue certainly cannot be decided in plaintiffs' favour on the misplaced assumption that it is defendant's onus to disprove plaintiffs' stand. Section 101, Evidence Act casts the burden of proof upon the plaintiffs. And in terms of section 102, Evidence Act it is the plaintiffs' case that would fail if no evidence at all were given on either side. For these reasons, the fact that there is no rent receipt of Rs. 500/ furnished by the defendant will not in any manner advance CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 15 of 23 plaintiffs' case.
25. Plaintiffs' counsel strongly urged that whenever the defendant used to pay the rent, he used to obtain an endorsement from either of the plaintiffs, to whom the rent was paid, in a notebook maintained by him. Decision reported as Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413 was strongly pressed into service to emphasise the legal proposition that even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It was thus urged that this Court ought to draw an adverse inference against the defendant, who has withheld the notebook, containing the entries visavis payment of monthly rentals with the endorsements. An adverse inference can be drawn against the defendant Arun only if and if it stands established that he indeed had been maintaining such a notebook. However, the evidence led by plaintiffs in this regard appears to be not credible. Plaintiffs' evidence in this context is rather an inconsistent one. Both PW1 and PW2 assert that such a notebook was being maintained by the defendant. Such an assertion is also made by PW4 Jagmohan. However, PW3 Bansi Lal deposed, "No rent receipt was issued to me of the rent paid. Plaintiff used to write on the diary kept by him." This only indicates that as per PW3 Bansi Lal such a diary was not with the tenant but with the landlord(s). And if for the rentals paid by PW3 Bansi Lal plaintiffs could maintain a diary, then I see no reason as to why qua the CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 16 of 23 defendant Arun, plaintiffs themselves did not maintain such a diary? Further, PW4 Jagmohan states that PW3 Bansi Lal also used to keep such a notebook wherein he used to obtain plaintiffs' endorsement of payment of rentals by him. However, PW3 Bansi Lal in his evidence does not at all state that he ever maintained a notebook of this sort. Rather, as noted hereinabove, going by his testimony, such a diary was maintained by his landlord(s). Lastly, it is rather difficult to believe that plaintiffs, who are in the business of jewellery, do not maintain account of their own. Monthly rental of Rs. 4,000/ way back in 1991 was not a petty sum of which a person doing business may not really keep track of. Plaintiffs are in the business of silver jewellery for the last about three decades. It appears to be little unusual that they themselves did not maintain an account of their own income and expenses. For these reasons, this plea of the plaintiffs is turned down.
26. Arguments were advanced at Bar about the property number of the premises in question. As per the plaintiffs, the property number is IX/3381/H/6B, Dharampura, Dhundela Chowk, Gandhi Nagar, Delhi. However, the defendant states that it is IX/3381/23A, Gali no. 8, Jain Mohalla, Dharampura, Dundela Chowk, Gandhi Nagar, Delhi110031. Plaintiffs in this regard placed reliance upon the house tax bills and the house tax receipts. They also relied upon the process server's report showing that the defendant was served with the summons at the address furnished by them. Decision reported as Mt. Rewati & Ors. Vs. Mohan Lal, AIR 1940 Lahore CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 17 of 23 312 was cited by the plaintiffs in support of their contention that process server's report is admissible without him being called as a witness. Plaintiffs thus urged that the fact that the process server visited the premises and furnished his report of due service upon the defendant reflects that the property number furnished by them is correct. My view is that this dispute is hardly germane for the present purpose to resolve the dispute between the landlord(s) and the tenant. The property is a single identifiable property. Both the parties refer to one and only one property. It is only that the plaintiffs give it a property number to which the defendant does not agree and vice versa. Whether or not, the single identifiable property is known by property A or property B would not be decisive in any manner for the adjudication of the case at hand. After all, both the parties agree that the property is one and only one, the identity of which is not in dispute except for its property number. As Shakespeare said in Romeo and Juliet that a rose by any other name would smell as sweet. I hold that as between the tenant (defendant Arun) and his landlord(s) this aspect is not of much relevance. In any event of the matter, I am of the view that a tenant once inducted cannot later confront his landlord on the premise that the property number of the premises in which he was inducted was actually wrong.
27. The crux of the aforesaid discussion is that plaintiffs have failed to prove that the monthly rental of the tenanted premises (as per site plan Ex. PW1/1) is Rs. 4,000/. It stands not proved that the monthly rental of the CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 18 of 23 tenanted premises (as per site plan Ex. PW1/1) is Rs. 4,000/.
28. This Civil Court would have had the jurisdiction to pass an ejectment decree against the defendanttenant only if the monthly rent was in excess Rs. 3,500/ {section 3 (c), DRC Act}. There is absolutely no material on record to prove that monthly rent of the tenanted premises (as per site plan Ex. PW1/1) exceeds Rs. 3,500/. Consequently, it also stands not proved that the monthly rent of the tenanted premises (as per site plan Ex. PW1/1) is more than Rs. 3,500/.
29. Consequently, the jurisdiction of this Civil Court to pass an ejectment decree against the defendanttenant is barred by sections 3 (c) and 50, DRC Act. Plaintiffs are, therefore, not entitled to an ejectment decree visavis the tenanted premises (as per site plan Ex. PW1/1) against the defendanttenant. This issue thus stands decided against the plaintiffs.
30. Issue no. 3 The issue is whether the plaintiffs prove that they are entitled to a decree for damages as prayed for and if so, at what rate and for what period. Plaintiffs have claimed damages at the rate of Rs. 10,000/ per month from date of filing of the suit till delivery of possession of the premises in question. Mesne profits/damages can be claimed from a tenant from the point of time from which his possession becomes unauthorised. In terms of section 2(12), CPC mesne profits can be awarded only if the defendant is in wrongful possession of the property. In the case at hand, it has been held hereinabove that this Court's jurisdiction to pass an ejectment CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 19 of 23 decree against the defendant is barred by DRC Act. The necessary inference thereof is that the defendant has the protection of DRC Act. As per section 2
(l), DRC Act, a tenant includes a person whose tenancy has been terminated. And as such, defendant's possession, notwithstanding the fact that plaintiffs sought to terminate his tenancy, cannot be said to be unauthorised visavis the portion as shown in red in the site plan Ex. PW1/1. In terms of section 2
(l), DRC Act defendant Arun continues to be the tenant. He is therefore not liable to pay any mesne profits/damages to the plaintiffs. This issue thus stands decided against the plaintiffs and in defendant's favour by holding that the latter is not liable to pay any mesne profits/damages to the former.
31. Issue n o.
2
The issue is whether the plaintiffs prove that they are entitled to a decree for rental arrears, and if so at what rate and for what term. Plaintiffs have claimed total rental arrears of Rs. 64,000/ for the period from 01.01.2005 to 30.04.2006 at monthly rate of Rs. 4,000/ together with interest of 15% per annum thereon. As held above, it stands not proved that the monthly rent is Rs. 4,000/. Consequently, a decree for Rs. 64,000/ towards rental arrears can certainly not be passed.
32. A decree for arrears of rent at some other rate of monthly rent can be passed only if such monthly rent is ascertainable. However there has to be some material on record to say that the monthly rent is Rs. 1,000/, or Rs. 2,000/, or any other sum. And it is only then that there can be some basis to ascertain the rental arrears. But there is no material on record to say as to CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 20 of 23 what is the rate of monthly rent, except for defendant's admission that such rent is Rs. 500/. For the present, for lack of any material in this regard, this Court has no option except to go by defendant's admission and take it that the rate of such monthly rent is Rs. 500/.
33. Now to the period of unpaid rent. Plaintiffs' claim pertains to the period between 01.01.2005 to 30.04.2006. I shall divide this period in two parts as follows and then determine the arrears.
(a) As for the period between October, 2005 to April, 2006 it is an admitted position that defendant did not pay the rent directly to the plaintiffs. For this period defendant took recourse to section 27, DRC Act and deposited the rent at the rate of Rs. 500/ per month in the Court of Additional Rent Controller on the premise that there was some doubt about ownership of the property. It does appear from the certified copies on record that Additional Rent Control Tribunal vide its Order dt. 16.04.2008 allowed the plaintiff no. 2 Raj Kumar to withdraw the rent so deposited. Therefore, for the period between October, 2005 till April, 2006 plaintiffs cannot claim any arrears of rent.
(b) Now to the period between 01.01.2005 till September, 2005. As for this period, on preponderance of probabilities, I am of the view that it stands not proved that the defendant did not pay the rent. As per the plaintiffs, defendant stopped paying the rent from January, 2005. CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 21 of 23 But, quite surprisingly, plaintiffs did not confront him immediately on this issue. The evidence on record does not seem to suggest that as soon as the defendant stopped to pay the rent, he was asked not do so. There is neither any correspondence on this issue at the time when he stopped to pay the rent, or at any rate some time thereafter. Plaintiffs woke up a good 15 months later by issuing the notice Ex. PW1/2 dt. 01.04.2006 alleging therein that rent since 01.01.2005 was not being paid. This aspect, from the point of view of normal course of human conduct, does appear to tilt the balance against the plaintiffs. I, therefore, hold that for the period between 01.01.2005 till September, 2005, on preponderance of probabilities, it stands not proved that the defendant did not pay the rent. Consequently, plaintiffs cannot claim any arrears of rent for the period between 01.01.2005 till September, 2005.
34. Before parting with the discussion on this issue there is one aspect of the present matter which is required to be noted. Defendant states that he received a notice Ex. DW1/2 from one Balwant Singh, wherein he claimed himself to be the ownerlandlord and demanded rent. Defendant goes on to state that he then had a doubt about the ownership of the premises and thus stopped to pay rent to the plaintiffs. I must add here that defendant had absolutely no business to stop paying rent to the plaintiffs. He admits in his crossexamination that plaintiff no. 2 Raj Kumar had inducted him into the CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 22 of 23 tenancy in 199192. And therefore, in view of section 116, Evidence Act he, in his capacity as a tenant, was estopped from doubting the ownership of the person who had inducted him into tenancy. Defendanttenant had absolutely no justification to entertain a doubt about ownership of the tenanted premises under his occupation and stop paying rent to the person who inducted him into the tenancy on the premise that he had received a notice from one Sh. Balwant Singh.
35. I answer this issue against the plaintiffs by holding that they are not entitled to any rental arrears from the defendant for the period between 01.01.2005 to 30.04.2006. It appears from the record of this Court that the defendant has, however, deposited the rent at the rate of Rs. 500/ per month till 31.07.2014 in compliance with the Order dt. 23.05.2009. Plaintiff no. 2 Raj Kumar may, if he so desires, withdraw this amount, if not already withdrawn.
36. Relief In the light of findings upon the foregoing issues, this suit of the plaintiffs must fail. It stands dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (M.P. SINGH)
Dated:26.07.2014 Senior Civil Judge/Rent Controller (East)
Karkardooma Courts, Delhi
CS no. 1249/06 Shyam Lal & Anr. vs. Arun Kumar Page 23 of 23