Delhi District Court
Dada Dev Mandir Prabhandak Sabha vs Sh. Bhagirath Verma on 15 December, 2014
IN THE COURT OF SH. ARUN KUMAR: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 293/2012
Unique case ID No: 02405C0237022012
IN THE MATTER OF
Dada Dev Mandir Prabhandak Sabha
(Barah Gaon) Palam
Through Sh. Chander Bhan
Authorized Representative
New Delhi
... Plaintiff
Versus
Sh. Bhagirath Verma
Son of Sh. Hanuman
R/o RZ295M, Raj Nagar II
Palam Colony, New Delhi
Also at shop No. 27
Dada Dev Mandir Prabhandak Sabha
(Barah Gaon), Palam
New Delhi. ... Defendant
Date of Institution : 17.10.2012
Date on which judgment was reserved : 15.11.2014
Date of pronouncing judgment : 15.12.2014
CS No. 293/ 2012
Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma
Judgment dated 15.12.2014 Page no. 1 of 44
JUDGMENT
1. By way of this judgment, I will dispose of the suit filed by the plaintiff, i.e., Dada Dev Mandir Prabandhak Sabha (Barah Gaon), Palam against the defendant Sh. Bhagirath Verma who is stated to be a tenant with respect to shop no.27 situated in Dada Dev Mandir Complex, Palam registered under the plaintiff sabha. The plaintiff has prayed for a decree for possession of aforesaid shop (hereinafter referred to as 'suit property') more particularly shown in red colour in site plan Ex.PW1/1 alongwith decree of recovery of arrears of rent of Rs. 13,500/ @ Rs.1500/ per month for the period 01.01.2012 to 30.09.2012 and mense profit @ Rs. 6,000/ per month from the date of filing of this suit till the date of actual vacation of the suit property by the defendant. The plaintiff has further prayed for decree of permanent injunction restraining the defendant from subletting, transferring and selling the suit property or CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 2 of 44 creating third party interest therein and from raising illegal construction and altering the basic structure of the suit property.
2. Brief case of the plaintiff as per the plaint is that the plaintiff is a registered society under the Societies Registration Act bearing Registration No. S2660 and is the owner of Dada Dev Mandir Complex. In the front portion of the mandir 54 shops including the suit property have been constructed which have been rented out to several tenants by the plaintiff. It is further case of the plaintiff that plaintiff society had inducted the defendant as tenant with respect to the suit property @ Rs.1,500/ per month and the defendant has defaulted in making the payment of rent of the aforesaid shop to the plaintiff and failed to pay the rent after 01.01.2012. It is further case of the plaintiff that the plaintiff requires the suit property for the welfare of public at large and it has duly terminated the tenancy of the defendant by serving the legal notice dated 16.07.2012 (posted on 21.07.2012). Despite termination of tenancy, defendant has CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 3 of 44 failed to vacate the suit property. According to the plaintiff, the suit property if let out in open market, can fetch Rs.5,000/ per month and the plaintiff has prayed for mesne profit @ Rs. 6,000/ per month from the date of termination of tenancy alongwith Rs.13,500/ as arrears of rent in addition to the decree for possession of the suit property in its favour.
3. On receipt of summons of the suit for the settlement of issues, defendant had entered appearance alongwith his counsel and filed his written statement. In the aforesaid written statement, the defendant has not denied that he is the tenant under the plaintiff society and the aforesaid tenancy is a tenancy on month to month basis. According to him, the initial rent of the suit property, which was agreed to between the parties was Rs. 1,150/ which has subsequently been raised unilaterally by the plaintiff to Rs.1,500/ per month. According to him, he had regularly paid the monthly rent to the plaintiff till December, 2011, however, the plaintiff has refused to accept the rent after CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 4 of 44 January, 2012 despite the fact that defendant tendered the same by way of money order and by visiting the office of the Plaintiff society personally.
4. The defendant has further taken the plea that his tenancy is protected under the Delhi Rent Control Act since the suit property is situated in urban area notified by the Central Govt u/s.507, Delhi Municipal Corporation Act, 1957 on 24.10.1994. The defendant has also challanged the locus standi of the plaintiff to file the present suit against the defendant.
5. It has further been alleged by the defendant that tenancy has not been validly terminated by the plaintiff since no valid notice under Section 106 of the Transfer of Property Act has been served upon him. According to him, he has received the notice sent by the counsel on behalf of the Dada Dev Mandir Prabhandhak committee instead of Dada Dev Mandir Prabandhak Sabha. In the aforesaid written statement, he has also undertaken to pay future rent on regular basis to the CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 5 of 44 plaintiff.
6. In replication to the written statement filed on behalf of the plaintiff, the plaintiff reiterated all the averments made in the plaint and thereafter the application under Order 12 Rule 6 CPC was moved by the plaintiff and vide order dated 19.08.2013, the suit of the plaintiff was partly decreed by the Ld. Predecessor of this court under Order 12 Rule 6 CPC.
7. The aforesaid order dated 19.08.2013 was challenged by the defendant by way of an appeal bearing no. 38/13 in the court of Sh. Vinod Yadav, Ld. ADJ1, SouthWest District, Dwarka and vide judgment dated 02.12.2013 passed by the Ld. Appellate Court, the appeal of the defendant was allowed and the matter was remanded back by the Appellate Court to this court with the direction to frame the issue regarding the applicability of section 50 of the Delhi Rent Control Act or otherwise and also regarding the competence of the President of the plaintiff sabha to sign, verify and institute the suit. Accordingly, in terms of the CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 6 of 44 directions of Ld. Appellate Court as well as on the basis of the pleadings of the parties, the following issues were framed by Ld. predecessor of this court on 11.12.2013: i. Whether Sh. Chander Bhan is duly authorized person to verify, institute and maintain the present suit on behalf of the plaintiff ? OPP.
ii. Whether the suit of the plaintiff is barred u/s.50 of DRC Act? OPD.
iii. Whether the plaintiff is entitled for relief of possession, as prayed for ? OPP.
iv. Whether the plaintiff is entitled for arrears of rent from the defendant if so, at what rate and for which period ? OPP.
v. Whether the plaintiff is entitled for mesne profits/damages from the defendant, if so, at what rate CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 7 of 44 and for what period ? OPP.
vi. Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP.
vii.Relief.
8. Thereafter matter was fixed for plaintiff's evidence. Sh.
Chander Bhan has examined himself as PW1 on behalf of the plaintiff and has tendered his affidavit Ex. PW 1/A in evidence alongwith the following documents :
Ex. PW 1/1 site plan of the suit property. Ex. PW1/2 - Resolution dated 06.05.2012 Ex. PW1/3 - Resolution dated 20.05.2012. Ex. PW1/4 - Resolution dated 16.08.2009. Ex. PW1/5 (Colly) - Resolution dated 24.02.2013. Ex. PW1/6 - Resolution dated 01.01.2012 Ex. PW1/7 - Resolution dated 06.10.2013 .
Ex. PW1/8 - Certified copy of the plaint in suit
filed by Dada Dev Market Welfare Association
against the plaintiff in the court of Ld. ACJ Dwarka. CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 8 of 44 Ex. PW 1/9 (Colly) - Copy of legal notice dated 16.07.2012 alongwith postal receipt regarding dispatch of the same.
Mark A - Copy of certificate of Registration of plaintiff society.
9. PW 1 was duly cross examined by ld. counsel for the defendant and during cross examination the following documents were produced by the witness Ex. PW 1/DX 1 (Colly) Acknowledgment dated 11.09.2013 of submission of information to the office of Registrar of Societies regarding elections of governing body of plaintiff society held during 16.08.2009 to 24.09.2013 alongwith list of members of governing body.
Ex. PW 1/ DX 2 - Memorandum of Association of plaintiff society.
Ex. PW 1/ DX 3 - Rules and Regulations of the plaintiff society.
10. No other witness was examined on behalf of the plaintiff. Vide separate statement of plaintiff, the plaintiff evidence was closed on 04.03.2014 and matter was fixed for defendant's evidence. CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 9 of 44
11. Defendant has examined himself as DW1 in support of his case and has tendered his affidavit Ex. DW 1/A reaffirming the stand taken by him in his written statement.
12.Defendant had also moved an application for summoning of as many as 22 witnesses. Subsequently on 02.07.2014, it was submitted by counsel for the defendant that he would like to examine only 45 witnesses out of the witnesses mentioned in the list of witnesses and accordingly at his request, the witnesses mentioned at Sr. No. 1, 2, 3 & 7 were summoned vide order dated 02.07.2014.
13. Witness from the office of Registrar of Societies, Government of NCT of Delhi was examined as DW 2 who has produced the summoned record i.e. the entire record pertaining to the plaintiff society as available in the office of Registrar of Societies and the same is Ex. DW 2/A (Colly). It has been deposed by the aforesaid witness that original file of the plaintiff society was missing from the records of the office of CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 10 of 44 Registrar of Societies and as such on an application moved on behalf of the plaintiff society on 27.03.2003, the record of the plaintiff society was reconstructed and it is the reconstructed record which has been produced by him and is Ex DW 2/A (colly).
14. The witness at Sr. No.2 in the application for summoning of witnesses i.e., concerned officer from Ministry of Urban Development (Government of India), Nirman Bhawan, New Delhi was examined as DW3 who has proved the summoned record, i.e., various notifications issued by the Central Govt under proviso to section 1(2) of Delhi Rent Control Act and same are Ex.DW3/A (Colly) & Ex.DW3/B. It has further been deposed by him that no notification other than the notifications Ex.DW3/A & Ex.DW3/B has ever been issued by the Central Government under proviso to section 1 (2) of Delhi Rent Control Act, 1958 and as per the notifications Ex. DW 3/A (Colly) and Ex. DW 3/ B, the Delhi Rent Control Act has not CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 11 of 44 been extended to 'Palam Village' where the suit property is situated.
15. Thereafter, it was submitted on behalf of the defendant that the defendant does not wish to examine any other witness in support of his case. Accordingly, the witnesses who were present were discharged unexamined and on a separate statement of defendant DE was closed vide order dated 28.07.2014 and the matter was fixed for final arguments.
16. Final arguments were heard on behalf of the parties on several dates. Besides, written submissions have also been filed on behalf of the parties.
17. On the basis of material available on record and in view of the submissions made on behalf of parties, my issuewise findings on issues framed by Ld Predecessor of this court are as follows:
ISSUE NO.1: Whether Shri Chander Bhan is the duly authorised person to verify, institute and maintain the present suit on behalf of the plaintiff? OPP. CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 12 of 44
18. It is submitted by counsel for the defendant that plaintiff has failed to prove that present suit has been filed by the plaintiff society through duly authorised representative, in the absence of which, suit of the plaintiff for recovery of possession and arrears of rent and mesne profits is liable to be dismissed. Ld counsel for the defendant has laid much emphasis on the irregularities found in the resolutions purportedly passed by the governing body of the plaintiff society allegedly authorizing Mr Chander Bhan to file the present suit. It has been submitted by counsel for defendant in this regard that resolution dated 06.05.2012 does not authorise Mr. Chander Bhan for filing the present suit on behalf of the plaintiff society whereas resolution dated 20.05.2012 purportedly passed by governing body of the plaintiff society is in violation of alleged rules and regulations of the plaintiff society relied upon the plaintiff society itself. He has further pointed out that none of the aforesaid resolutions relied upon by the plaintiff is on the letter head of the society CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 13 of 44 nor the same bears seal and stamp of either the society or its office bearers. Similarly, various discrepancies have been pointed out by Ld counsel for the defendant in the other resolutions dated 16.08.2009, 01.01.2012, 24.02.2013 and 06.10.2013. In nut shell, the case of the defendant is that Mr Chander Bhan alleged AR of the plaintiff society has not been duly authorised by the plaintiff society by way of any resolution validly passed by the governing body of the plaintiff society and the resolutions which have been relied upon by the plaintiff are passed in gross violation of rules and regulations of the society and as such they do not confer any authority upon Mr Chander Bhan for filing the suit on behalf of the plaintiff.
19. On the other hand, it is submitted by counsel for the plaintiff that plaintiff has examined PW1 in support of his case that Mr Chander Bhan is duly authorised representative of the plaintiff society for filing the present suit. The testimony of PW1, according to him is duly corroborated by documentary evidence CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 14 of 44 in the form of several resolutions passed by members and governing body of the plaintiff society from time to time which have further been proved by DW2 who has produced entire record available with the Registrar of Societies with respect to the plaintiff society. He further submits that defendant being a tenant of plaintiff society is not concerned with the internal functioning of the plaintiff society and has got no locus to challenge the authority either of the plaintiff society or of its AR Mr Chander Bhan to institute the present suit for recovery of possession and arrears of rent against him in view of Section 116 of the Evidence Act.
20. I have heard submissions made on behalf of the parties and have also perused the records. A bare perusal of the resolution dated 06.05.2012 shows that Mr Chander Bhan has not been authorised by aforesaid resolution to file the present suit against the defendant. However, resolution dated 20.05.2012 clearly authorises Mr Chander Bhan to file present suit on CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 15 of 44 behalf of the plaintiff society against the defendant inasmuch as it states that Mr Chander Bhan shall be signing authority for all cases to be filed by the plaintiff society. Though, it has been submitted by counsel for the defendant during arguments that aforesaid resolution has been signed only by two alleged members of the governing body and remaining persons signing the same were neither member of the society nor were office bearers of the plaintiff society. However, a bare perusal of entire cross examination of PW1 shows that not even a single suggestion has been given by the counsel for the defendant to PW1 regarding resolution dated 20.05.2012 having not been signed by members or office bearers of the society. The aforesaid fact has also not been pleaded by defendant in his written statement nor the same find mentioned in affidavit by way of evidence of the defendant. In fact the whole contention of Ld counsel for the defendant regarding the resolutions having been passed in violation of rules and regulations of the plaintiff CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 16 of 44 society is beyond pleadings and beyond the evidence by way of affidavit of DW1. Thus, aforesaid issue could not have been raised by counsel for the defendant first time during final arguments.
21. There is another aspect of the matter, PW1 has proved resolution dated 16.08.2009 whereby elections of governing body of the plaintiff society were held under the chairmanship of Surat Singh, ExPradhan of the plaintiff society and in the aforesaid elections Mr Chander Bhan was elected as President of plaintiff society. Though, counsel for the defendant has argued that even aforesaid elections were not conducted by the plaintiff society as per its rules and regulations and that resolution seems to be signed by some strangers who were not even members of the society. However, it is significant to note that no such suggestion has been put by counsel for defendant to PW1 during his cross examination giving him the opportunity to explain the same and as such defendant can not be permitted CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 17 of 44 to raise aforesaid issue at the stage of final arguments. Moreover, there is no evidence on record regarding the aforesaid elections having been challenged by anyone till date. Even otherwise, defendant, being merely tenant under the plaintiff society, has got no locus standi to challenge the election of office bearers or of the President of the plaintiff society, as in my considered opinion only member or prospective member of the society could have challenged the elections of the society. Besides, in view of the provisions of Section 116 of the Evidence Act a tenant is estopped from denying the ownership/title of the landlord over the tenanted premises. While drawing the analogy from the said provision, if a tenant is estopped from disputing the ownership of the landlord, he can not be permitted to question the internal functioning of the plaintiff society. Therefore, in view of the aforesaid discussions, even if, it is assumed for the sake of arguments that there were certain irregularities in the elections CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 18 of 44 of the society conducted on 16.08.2009 and in the resolutions passed on 01.01.2012, 20.05.2012, 24.02.2013 and 06.10.2013 by the plaintiff society, the defendant can not be allowed to derive any benefit out of the same inasmuch as once the defendant received a notice of termination of tenancy he was duty bound to hand over the vacant and peaceful possession of the tenanted premises to landlord i.e. plaintiff society.
22. Even if the contention of Ld counsel for the defendant regarding the management of the society having been illegally taken over by some powerful people including Mr Chander Bhan is assumed to be correct (though the same is beyond pleadings and no evidence has been led by the defendant in support of said plea), still admittedly the defendant had been paying the rent to the said management at least till December 2011. The defendant has further undertaken to pay the further rent to the plaintiff, which is functioning under the same management, in his written statement. Thus, it is apparent that CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 19 of 44 defendant has raised the aforesaid issue merely in order to avoid his eviction by the plaintiff society. Had it been a society different from the society bearing Registration No.S2660, as has been sought to be alleged by counsel for the defendant, the defendant would not have continued paying rent to the society till December 2011. The defendant has even admitted in his Written Statement having filed a suit for injunction against plaintiff society in the court of Ld ACJ through Dada Dev Market Welfare Association, though during his cross examination he has tried to deny the same. Therefore, even if the contention of Ld counsel for the defendant regarding change in management or even the society post 2003 is accepted, the defendant has attorned to the said new society/management by continuously paying rent till December 2011 and as such estopped from disputing that the present society /management is not his landlord.
23. Even otherwise, as per resolution dated 16.08.2009 Mr CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 20 of 44 Chander Bhan was elected president of the plaintiff society and in the absence of any challenge by any member of the society to his election as president, he continued to be president of plaintiff society till 24.02.2013 when fresh elections of the governing body of plaintiff society has taken place and in view of provisions of Section 6 of the Societies Registration Act being elected President of plaintiff society, Mr Chander Bhan was authorised to sue and be sued on behalf of the plaintiff society independent of any resolution passed by governing body authorising him to file present suit. After elections of new governing body on 24.02.2013 Mr Chander Bhan was once again authorised by new governing body vide resolutions dated 24.02.2013 and 06.10.2013 to pursue the present suit against defendant. Merely because the aforesaid resolutions were also signed by certain persons who were not members of the governing body/or of the society, in addition to the office bearers of the plaintiff society, the same will not have the effect CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 21 of 44 of invalidating aforesaid resolutions so long as it has been signed by atleast 2/3 members of governing body of the plaintiff society. It has nowhere been suggested by counsel for the defendant to PW1 during his cross examination that aforesaid resolution had not been signed by 2/3 members of the governing body of the plaintiff society. In the absence of any such suggestions, the defendant can not be allowed to take aforesaid plea during final arguments inasmuch as witness could not get an opportunity to explain the same.
24. Even otherwise, Mr Chander Bhan was acting as de facto, if not de jure, president of the society during the period when the suit was filed by the plaintiff society and as such unless and until his election is set aside by competent court in appropriate proceedings, the suit filed by him can not be dismissed as not been properly instituted.
25. It is significant to note that the defendant had filed list of 23 witnesses to be examined in support of his case that Mr CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 22 of 44 Chander Bhan was not duly authorised representative of the plaintiff society and to file present suit and some of the aforesaid witnesses were even summoned by the court on the request of the defendant. However, the aforesaid witnesses were discharged unexamined by court at the request of counsel for the defendant who stated that defendant does not wish to examine them in support of his case. It is pointed out by counsel for the plaintiff that defendant had refused to examine the aforesaid witnesses since the aforesaid witnesses, if examined, would have proved the case of the plaintiff that elections were properly conducted by plaintiff on 16.08.2009 and thereafter on 24.02.2013 and that Mr Chander Bhan was duly authorised by plaintiff society to file present suit against the defendant. He submits that decision on the part of defendant to drop the aforesaid witnesses when they had already been summoned by the court at request of counsel for the defendant was deliberate since some of the aforesaid witnesses had already deposed in CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 23 of 44 favour of the plaintiff in some other connected matters filed by the plaintiff against other tenants which were pending adjudication before Shri Vishal Gogne, Ld Senior Civil Judge. Ld counsel for the plaintiff has filed certified copy of judgment dated 29.09.2014 passed by Ld Senior Civil Judge in CS no. 407/12 in support of his aforesaid contentions wherein it has been recorded by Ld SCJ that three of the witnesses whose names find mentioned in list of the witnesses filed on behalf of the defendant in the present case have actually deposed in favour of the plaintiff that the elections of the plaintiff society were properly conducted and Mr Chander Bhan was duly authorised to file suit against the tenants of the plaintiff society.
26. The contention of Ld counsel for the defendant regarding the resolutions placed on record by PW1 being not on letter head or not bearing seal of the society is also devoid of any merit. Admittedly, the copy of resolutions submitted by society to the office of Registrar are not only on letter heads of the plaintiff CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 24 of 44 society but are also bearing the seal of the society. Thus, it is apparent that since the resolutions are recorded by the plaintiff society in a bound register maintained by society, the same were not required to be on letter head or to bear the seal/stamp of society, however, as and when the copies were submitted to the Registrar's office not only they were on the letter head of the society but the seal of the society was also affixed on the same. It is also apparent from record that the plaintiff was unable to produce the record of the society prior to the year 2002 as the same was missing not only from the office of plaintiff society but also from the office of Registrar of Societies. The record produced by DW2 is the record, reconstructed by Registrar on an application moved on behalf of plaintiff society in the year 2002 i.e. much prior to the date of filing of present suit by the plaintiff and admittedly the defendant continued paying rent to the plaintiff till December 2011.
27. Ld. counsel for the defendant has further relied upon the CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 25 of 44 following 3 judgments in support of his submission that in the absence of proper authorization by the plaintiff society, the present suit filed by Mr. Chander Bhan on behalf of the plaintiff society is not maintainable:
a) Gorakh Hilal Patil & Anr. Vs. Parit Samaj Sewa Mandal, Shirpur & Anr 2012 (2) Mah.LJ 177
b) Deepak R. Mehtra Vs. National Sports Club of India CS (OS) No. 1195/2008 decided by Hon'ble Delhi High Court on 21.04.2009.
c) Goa State Corporative Bank Ltd. Vs. Kurtarkar Traders (2010) 3 Mah.LJ 297
28. I have carefully gone through the aforesaid judgments and with utmost respect to the Hon'ble Bombay High Court as well as to the Hon'ble Delhi High Court, in my considered opinion, none of the aforesaid judgments is applicable to the facts of the present case. Bare perusal of the first judgment in Gorakh Hilal patil's case shows that in the aforesaid case, the court was CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 26 of 44 dealing with the suit filed by 5 persons on behalf of the unregistered society having 262 Members. Under the aforesaid circumstances, it was held by Hon'ble Bombay High Court that the suit was not maintainable in as much as neither any resolution passed by the respondent authorizing the aforesaid 5 persons/panchas was placed on record by the plaintiff nor the plaintiff have taken the aid of Order 1 Rule 8 CPC to file the representative suit. Admittedly, in the present suit the plaintiff is a registered society and as has already been observed, Mr. Chander Bhan was the duly elected President of the plaintiff society as on the date of filing of the present suit by him on behalf of the plaintiff society. Even otherwise, he had been authorized by resolution dated 20.05.2012, 24.02.2013 and 06.10.2013 respectively to pursue the present suit on behalf of the plaintiff society.
29. So far as the judgment of Hon'ble Bombay High Court in Goa State corporative Bank Ltd. case (Supra) is concerned, in that CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 27 of 44 case also the court was dealing with criminal complaints filed by the alleged AR's of the bank under Section 138 of the Negotiable Instrument Act. In one of the complaint case the plaintiff had relied upon the authority letter purportedly signed by the MD of the bank. Further, he could not prove on record that the MD himself was authorized to file the criminal complaint under Section 138 of Negotiable Instrument Act on behalf of the complainant bank. The contention of the complainant in the aforesaid case based on Section 52 of Multi State Corporative Society Act 2002 regarding the Chief Executive of the Bank being authorized to file the criminal complaints on behalf of the bank was also rejected by the Hon'ble Bombay Court while stating that the aforesaid Section authorizes the Chief Executive to file only the civil proceedings on behalf of the bank and not the criminal complaints. In the present suit we are dealing with civil suit filed by the President of the plaintiff society which he is competent to file by virtue of CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 28 of 44 Section 6 of the Societies Registration Act. Even otherwise, it has already held that he was duly authorized to file and pursue the present suit on behalf of plaintiff society by several resolutions passed by Governing body of the plaintiff society.
30. The third judgment passed by Hon'ble Delhi High Court in Deepak Mehtra case (Supra) also does not support the case of the plaintiff in as much as in that suit the court was called upon to interpret the Rules and Regulations of defendant club and was dealing with the question as to whether as per the aforesaid Rules and Regulations person who is not the Member of Central Council of the club could have been elected as the President of the Central Council. In the present case in hand we are dealing with suit filed by plaintiff society against the tenant for recovery of possession and arrears of rent and mense profit and as has already been observed by me, on the analogy of provisions of 116 of Evidence Act, the defendant herein is estopped from challenging not only the election of the Governing body of the CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 29 of 44 plaintiff society but also the internal functioning of its Governing body. Therefore, none of the judgments relied upon by the Ld. counsel for the defendant supports the case of the defendant.
31. To conclude, the whole contention of the defendant regarding taking over of management of plaintiff society by some mighty people for personal gain and regarding elections of the plaintiff being contrary to its own rules and regulations are beyond pleadings of the defendant in his written statement. No such suggestion were given by the counsel for the defendant to PW1 during his cross examination. It is settled legal position that no evidence can be led by a party beyond pleadings and if let can not be looked into by the court. As such even, if it is assumed that defendant has led any evidence to prove the aforesaid contention , the same can not be looked into by this court being beyond pleadings. All the aforesaid contentions seem to have been raised by defendant out of desperation in order to avoid CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 30 of 44 his liability to hand over the possession of suit property to plaintiff despite termination of his tenancy way back in the year 2012.
32. In view of the aforesaid discussions, I am of the considered opinion that the plaintiff has been able to prove by preponderance of probabilities that the present suit has been filed by Mr Chander Bhan as duly authorised representative of the plaintiff society and as such issue no.1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.2: Whether the suit of the plaintiff is barred under Section 50 of the DRC Act? OPD.
33. Onus to prove the aforesaid issue was upon the defendant.
Defendant has failed to lead any evidence in support of his plea that suit of the plaintiff is barred Under Section 50 of DRC Act. According to counsel for the defendant, the area where suit of property is situated has already been notified by Central Government as Urban area vide notification CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 31 of 44 No.F33/Engg/TP(DP)/11424/94 dated 24.10.1994 under Section 507 of DMC Act, 1957 and since rent of suit property is less than Rs.3500/ the tenancy of the defendant is a protected tenancy under Delhi Rent Control Act and hence this court has no jurisdiction to try and entertain the present suit for recovery of possession against defendant. In view of the aforesaid pleadings, admittedly, the area where the suit property is situated was not mentioned in ScheduleI of the Delhi Rent Control Act as on the date of commencement of the aforesaid Act and has been subsequently urbanized under Section 507 of the DMC Act. As such in view of the judgment of Hon'ble Supreme Court in Mitter Sen Jain Vs Shakuntala Devi (2000) 9 Supreme Court cases 720, a further notification under proviso of Section 1 (2) of Delhi Rent Control Act was required so as to make provisions of Delhi Rent Control Act applicable to aforesaid area. It has nowhere been pleaded by the defendant in entire Written Statement that any notification under Section 1 CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 32 of 44 (2) Delhi Rent Control Act has ever been issued by the Central Government with respect to area where suit property is situated. In fact, DW3 Assistant from Ministry of Urban Development i.e defendant's own witness has deposed that no notification with respect to Palam Village has been issued by the Central Government in terms of priviso to Section 1 (2) of Delhi Rent Control Act 1958 till date. Besides, according to him, no notification under proviso of Section 1 (2) of the Delhi Rent Control Act has been issued by Central Government after 26.02.1986. Admittedly, the notification under Section 507 of DMC Act with respect to Palam Village has been issued by the Central Government on 24.10.1994 and the notification under priviso to Section 1 (2) of DRC Act can be issued only after an area is urbanized. Thus, in view of testimony of DW3 it has been established beyond doubt that no notification in terms of proviso of Section 1 (2) of DRC Act has been issued with respect to Palam Village till date. In fact no such notification CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 33 of 44 has been produced by the defendant during trial.
34. It has next been contended by counsel for the defendant in his written submissions that village Palam was earlier part of Revenue Division of Najafgarh which is duly notified under Section 1(2) of Delhi Rent Control Act, as such there is no need for any separate notification for village Palam. The aforesaid contention of Ld counsel for the defendant is clearly contrary to the pleadings of the defendant, nor any material has been placed on record by Ld counsel for the defendant in support of his aforesaid contention. A similar contention with respect to village Dabri which was urbanized vide the same notification dated 24.10.1994 has already been dealt with by Hon'ble Delhi High Court in Rajpal Singh Vs Deen Dayal Kapil RSA No.129/2013 decided on 23.01.2014 holding therein that the notifications dated 23.05.1963 and 27.03.1979 had no applicability to the areas urbanised vide notification dated 24.10.1994. Besides, very recently it has been held by Hon'ble CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 34 of 44 Delhi High Court in Santosh Solanki Vs Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Palam RSA No.105/2014 decided on 22.04.2014 that no notification under Section 1(2) of DRC Act in respect of Village Palam has been issued by the Government till date. In view of the aforesaid discussions, issue no.2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.3: Whether the plaintiff is entitled for relief of possession, as prayed for? OPP.
35. Onus to prove aforesaid issue was upon the plaintiff. In order to get decree for possession, plaintiff i.e. landlord had to establish three facts i.e.
i) non applicability of the Delhi Rent Control Act, 1958.
ii) existence of landlord and tenant relationship between plaintiff and defendant
iii) Termination of tenancy.
36. It has already been held during discussions under issue no.2 CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 35 of 44 that provisions of Delhi Rent Control Act are not applicable to the suit property. Landlordtenant relationship has not been denied by the defendant in his Written Statement and the same has been admitted by the defendant not only in his Written Statement and in his affidavit Ex DW1/A but also during his cross examination. So far as the fact regarding termination of tenancy is concerned, the defendant has not denied receipt of notice of termination of tenancy in para 14 of the Written Statement though, according to him, aforesaid notice was illegal inasmuch as same was served on behalf of Deda Dev Mandir Prabandhak Committee and not on behalf of plaintiff society which is registered as 'Dada Dev Mandir Prabandhak Sabha'. I do not find any force in submission made on behalf of the defendant. A bare perusal of the legal notice Ex PW1/9 shows that though inadvertently the name of the plaintiff society has been mentioned as Dada Dev Mandir Prabandhak Committee, however, it has been categorically stated in the CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 36 of 44 aforesaid notice that the said committee is registered under the Societies Registration Act under Registration No.S2660. It has nowhere been disputed by the defendant that the registration number of the plaintiff society is not S2660 and as such merely because the name of the plaintiff society has been mentioned as Dada Dev Mandir Prabandhak Committee instead of Dada Dev Mandir Prabandhak Sabha, the notice Ex PW1/9 can not be termed as illegal. In fact, there is no difference in the literal meaning of the words 'committee' and 'sabha'. Thus, in my considered opinion, plaintiff has been able to establish all three facts that tenancy is not governed by provisions of Section 1 (2) of Delhi Rent Control Act and that the defendant was inducted as tenant under the plaintiff society which has been terminated vide notice dated 16.07.2012(posted on 21.07.2012). It has also not been disputed in para no.10 of the Written Statement that tenancy was on month to month basis and as such in view of provisions of Section 106 of CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 37 of 44 Transfer Property Act , same could have been terminated by serving 15 days notice. The tenancy, in my considered opinion, accordingly stood terminated with effect from 31.08.2012 in terms of notice Ex PW1/9. Even otherwise, it is settled legal position that in the absence of proof of service of notice under Section 106 of Transfer Property Act, service of summons upon the plaintiff of suit for recovery of possession shall have the effect of termination of the tenancy. While taking aforesaid view, I am supported by judgment passed by Hon'ble Supreme Court in Nopany Investment(P) Ltd VS Santoksh Singh (HUF), 146 (2008) DLT 217(SC) and the judgment of Hon'ble Delhi High Court in Jeevan Diesels & Electricals Ltd Vs Jasbir Singh Chadha (HUF) 183 (2011) DLT 712. Since the plaintiff has established all the three facts required for proving his entitlement for decree of possession in his favour the issue no.3 is decided in favour of the plaintiff and against the defendant.
CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 38 of 44 ISSUE NO.4: Whether the plaintiff is entitled for arrears of rent from the defendant, if so, at what rate and for which period? OPP.
37. Onus to prove the aforesaid issue was upon the plaintiff. It has been categorically pleaded by the plaintiff that defendant has failed to clear arrears of rent with effect from 01.01.2012 till September 2012 @ Rs.1500/ per month. Defendant has not disputed that fact that he has not paid rent with effect from 01.01.2012, though according to him, rent could not have been paid by him to the plaintiff because of refusal by the plaintiff and not because of any default on his part. He has also not disputed the fact that rent of the tenanted shop was enhanced by the plaintiff with effect from 01.01.2012 to Rs.1500/ per month, though according to him, same has been unilaterally enhanced by the plaintiff despite objections from the defendant's side. Be that as it may, in the absence of any evidence to the contrary, the rent @ Rs.1500/ per month has CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 39 of 44 been admitted by the defendant, in addition to his admission regarding non payment of same with effect from 01.01.2012. As such, plaintiff is held entitled to arrears of rent @ Rs.1500/ per month from January 2012 to September 2012 which comes out to be Rs.13,500/. The plaintiff is also held entitled to pendente lite and future interest @ 6% per annum on the aforesaid amount. Issue no.4 is accordingly decided in favour of the plaintiff and against defendant.
ISSUE NO.5: Whether the plaintiff is entitled for mesne profits/damages from the defendant, if so, at what rate and for what period? OPP.
38. As has already been observed by me during discussions on issue no.3, the tenancy of the defendant had been duly terminated by the plaintiff by serving notice under Section 106 of Transfer Property Act. Though, in terms of the aforesaid notice, the tenancy was terminated with effect from 31.08.2012, However, the plaintiff has prayed for mesne profits from the CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 40 of 44 date of filing of the suit till the date of recovery of possession by him. In view of the fact that tenancy has already been terminated by the plaintiff prior to filing of the present suit and in view of the fact that defendant has failed to hand over the possession of the suit property to the plaintiff despite termination of his tenancy, he is in unauthorised occupation of the suit property since the date of termination of the aforesaid tenancy and as such plaintiff is entitled to recovery of mesne profits and damages from the defendant till the time he actually hands over possession of the suit property to the plaintiff.
39. Now the question is, at what rate? The plaintiff has prayed for decree of mesne profits @ Rs.6000/ per month. However, the aforesaid prayer of the plaintiff can not be granted in view of the fact that in para no.15 of the plaint he himself has pleaded that the suit property, if let out in the open market, can fetch a rent of Rs.5000/ per month. Under aforesaid circumstances, as per own case of the plaintiff, suit property could have fetched a CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 41 of 44 rent of Rs.5000/ per month only, if let out in open market. In view of the said facts, it is beyond comprehension of this court as to how, he can claim mesne profits @ Rs.6000/ per month from the defendant. Even aforesaid rate of Rs.5000/ seems to be exorbitant in view of the fact that rent of the suit property was enhanced by the plaintiff to Rs.1500/ per month with effect from 01.01.2012 i.e. only 9 months prior to filing of the present suit by the plaintiff. In view of the aforesaid fact, coupled with the fact that the defendant is admittedly tenant of the plaintiff since the year 1988 and the rent is being enhanced gradually by the plaintiff from time to time, in my considered opinion, the ends of justice would be served by awarding mesne profits/damages @ Rs.1500/ per month in favour of the plaintiff and against defendant. Issue no.5 is accordingly decided in favour of the plaintiff and against the defendant. ISSUE NO.6.: Whether the plaintiff is entitled for permanent injunction, as prayed for? OPP.
CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 42 of 44
40. The onus to prove the aforesaid issue was upon the plaintiff.
However, the plaintiff has failed to lead any evidence on the aforesaid issue. Even the allegations made by the plaintiff in its plaint regarding there being any threat from the defendant of parting with possession of the suit property or of its sub letting or unauthorised alteration in the same have not been re affirmed by the plaintiff in affidavit of PW1 by way of evidence. In the absence of any evidence on the aforesaid issue, issue no.6 is decided against the plaintiff.
Relief.
41. In view of my findings on issue no.1 to 6 herein above, a decree of possession of suit property i.e. shop no.20, Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Palam, New Delhi, more particularly shown in red colour in the site plan Ex PW1/1 is passed in favour of the plaintiff and against the defendant. A further decree for arrears of rent of Rs.13,500/ along with CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 43 of 44 pendente lite and future interest @ 6% per annum is passed in favour of the plaintiff and against the defendant. ' A further decree for mesne profits @ Rs.1500/ per month with effect from 01.10.2012 till the date of actual handing over of possession of the suit property by the defendant to the plaintiff is passed in favour of the plaintiff and against the defendant. Suit of the plaintiff to the extent it seeks decree of permanent injunction against the defendant stands dismissed. Cost of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
42. Ordered accordingly.
Announced in the open court on this 15th day of December, 2014 This order consists of Forty four signed pages.
(Arun Kumar) Civil Judge(SW)/Dwarka Courts New Delhi/15.12.2014 (akn) CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 44 of 44 CS No. 293/ 2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam Vs. Bhagirath Verma Judgment dated 15.12.2014 Page no. 45 of 44