Delhi District Court
Suit No. 85/2016 Dharam Veer Singh vs . Mtnl." Dod: 26.04.2017 on 26 April, 2017
Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017
IN THE COURT OF ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
PRESIDED BY :MS. PINKI
Civil Suit No. 85/2016
In the matter of:
Mr. Dharam Veer Singh,
S/o Late Mr. Daya Ram,
R/o Village and Post Office Kakrola,
New Delhi110043.
.....Plaintiff
(Through Mr. Rajeshwar Dagar, Advocate)
Versus
Mahanagar Telphone Nigam Limited
Through its Chief General Manager,
Jeevan Bharti,
124, 12th Floor,
TowerI, Connaught Circus,
New Delhi110001.
.....Defendant
(Through Mr. Rajiv Singh, Advocate)
Date of Institution of Suit : 10.08.2011
Date of transfer to this court : 15.02.2016
Date of reserving judgment : 24.04.2017
Date of pronouncement : 26.04.2017
SUIT FOR POSSESSION, DAMAGES, MESNE PROFIT
AND PERMANENT INJUNCTION
1.The present suit has been filed on 06.08.2011 by the plaintiff Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 1 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 wherein the plaintiff has prayed for a decree of possession in respect of the property measuring 200 square yards, situated at KHASRA No. 189, Village and Post Office Kakrola, Najafgarh, New Delhi (hereinafter referred to as the "suit property") alongwith decree of damages of Rs.1,50,000/ per month alongwith interest @18% per month, decree of mesne profit and a decree of perpetual injunction.
Plaintiff 's Case
2. The brief facts of the case as borne out from the record are that that plaintiff is the owner of the built up property measuring 200 sq. yards situated at Khasra No. 189, Village & Post Office Kakrola, New Delhi(Hereinafter referred to as the suit property). It has been averred that defendant is a limited company duly incorporated under The Companies Act 1956 having its registered office at Jeevan Bharti TowerI, 12th Floor, 124, Connaught Circus, New Delhi 110001 and carrying on its business at Mumbai & Delhi. The defendant has been granted license by the Department of Telecom, Government of India to establish, maintain and work Cellular Mobile Telecom Services within the territorial jurisdiction of Union Territory of Delhi.
3. It has been averred that in the month of November 2000 the defendant approached the plaintiff and told that for the purpose of effectively providing the Cellular Telecom Services needs place to set up its Transmission Receiver towers, repeaters and relay stations and Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 2 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 for putting up its Base Trans Receiver Station (BTS) equipment room, entrance room Generator Set room, earthing pits, cable trays/racks. Therefore, needs the suit property, as it suits best to the defendant for a period of five years commencing from 10.01.2001. The plaintiff under the bonafide belief accepted the proposal made by the defendant and agreed to let out the suit property to the defendant. It has been submitted that lease deed dated 25.11.2000 was duly executed between the plaintiff and the defendant. The said lease deed was prepared at the instance of defendant unilaterally. The monthly rent has been mutually agreed between the parties @ Rs. 18,000/ per month excluding the electricity and water charges. The suit property was let out for a period of five years starting from 10.01.2001 to 09.01.2005 with the option of renewal of the lease deed for a further period of five years subject to increase in rent @ 9%.
4. It has been further averred that after the completion of the five years the defendant had paid the increased rent to the plaintiff for about four to five months, thereafter, defendant had stopped making the enhanced payment to the plaintiff violating the terms and conditions. It has been averred that in the month of August 2005 the market rent of the equal sized properties were fetching approximately Rs. 1,50,000/ per month whereas, the defendant was paying the rent @ Rs. 18,000/ per month. As the defendant was not paying the enhanced rent as mutually agreed between the parties, the plaintiff had Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 3 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 requested the defendant to vacate the suit property on different occasions. The defendant making excuses and gaining time on one pretext or the other. It has been further averred that as on date of filing of the suit, the other equal sized properties are fetching rent @ Rs. 3,00,000/ per month. Finding no other option the plaintiff has issued legal notice dated 29.11.2010 and requested the defendant to vacate the suit property on or before 31.12.2010 and also requested to pay a sum of Rs. 75,24,000/ against user charges for a period of sixty six months @ Rs. 1,32,000/ per month along with interest @ 18% per annum against the difference of market rent prevailing in the month of August 2005.
5. It has been submitted that after receiving legal notice, in the month of December 2010, defendant had requested the plaintiff for a formal meeting before initiation of any legal proceedings in their office. In the meeting it was agreed on behalf of the defendant that if the plaintiff would not claim previous charge being damage against past rent the defendant would vacate the suit within a period of six month i.e. by the end of June 2011.
6. The plaintiff on 01.07.2011 approached the officials of the defendant and asked as to why the suit property has not been vacated despite commitment, it has been informed that defendants had already searched some suitable premises for shifting their business. When the plaintiff made inquiries from local people he came to know Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 4 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 that defendant was not searching any such property. On 22.07.2011 plaintiff again visited the office of the defendant, however, he was not permitted to enter into the suit property. Plaintiff has also come to know from reliable sources that defendant is trying to induct and handover the actual possession of the suit property to some other sister concern for the purpose of escaping themselves from liabilities. Thereafter, the present suit was filed seeking possession, damage, mesne profit and permanent injunction.
7. The plaintiff preferred not to file any replication.
Defendants' Case
8. Defendants filed written statement on 06.01.2012 wherein the defendant has contested the suit inter alia on the grounds that the agreement dated 25.11.2000 is binding between the parties and as per Clause 12 of the said agreement, all the disputes arising out of a contract between public sector enterprise and others shall be referred to arbitration and this is more particularly in view of the judgment of Hon'ble Supreme Court in case titled "Oil and Natural Gas Commission vs. Collector of Central Excise (2004) 6 SCC 437". The defendant has admitted that the rent payable to the plaintiff was fixed mutually between the parties @Rs.18,000/ per month for a period of five years starting from 10.01.2001 to 09.01.2005 with an option for renewal for another five years with an increase in rent @9%, however, it has Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 5 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 denied that it ever defaulted in the payment of rent and has paid the increased rent i.e. Rs.19,620/ till September, 2011.
Court proceedings :
9. Vide detailed order dated 05.11.2016, an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 was allowed, decree of possession was passed in this case. Issue no. 1 has already been decided in favour of the plaintiff and against the defendant. This order has not been challenged till date and has attained finality.
Issues:
10. Vide order dated 13.02.2014 passed by Hon'ble Mr. Justice Manmohan Singh, following issues were framed :
"1. Whether the plaintiff is entitled for a decree of possession in respect of the suit property? OPP
2. Whether the plaintiff is entitled for a decree of damages of Rs.1,50,000/ per month along with interest @ 18% per annum for use and occupation w.e.f. July 2011 till the date of handing over the suit property? OPP
3. Whether the plaintiff is entitled for a decree of permanent injunction restraining the defendant, his agents, employees etc. from parting with possession or creating third party interest ? OPP
4. Whether the plaintiff is entitled for a decree of mesne profiit? If so, to what amount ? OPP
5. Whether the suit is liable to be dismissed in view of Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 6 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 Clause 12 of the Agreement dated 25th November, 200 ? OPD
6. Relief;"
Parties' Evidence
11. The plaintiff has examined only one witness in support of his case i.e. PW1 Mr. Dharam Veer Singh, the plaintiff himself and has proved on record the following documents:
1. Legal Notice dated 25.11.2000 (should have been 29.11.2010) Ex.PW1/1.
2. Postal receipt dated 29.11.2010 Ex.PW1/2.
12. The defendant has preferred not to examine any witness in its defence. Defendant's evidence was closed vide order dated 24.04.2017.
Findings
13. The record has been carefully and thoroughly perused.
Submissions of either side have been heard and considered.
14. The issue wise findings in the matter are as follows:
Issue No. 1. Whether the plaintiff is entitled for a decree of possession in respect of the suit property? OPP Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 7 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 Vide detailed order dated 05.11.2016 an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 dated 21.04.2015 moved before the Hon'ble High Court was allowed. Decree of possession in respect of suit property was passed and Issue No. 1 was decided in favour of the plaintiff and against the defendant. The parties have not challenged this order, therefore, order dated 05.11.2016 has attained finality. Despite order dated 05.11.2016, till date defendant has not handed over possession of the suit property.
15. Issue No. 2. Whether the plaintiff is entitled for a decree of damages of Rs.1,50,000/ per month along with interest @18% per annum for use and occupation w.e.f. July, 2011 till the date of handling over the suit property? OPP Issue No. 4. Whether the plaintiff is entitled for a decree of mesne profiit? If so, to what amount ? OPP The onus to prove these issues no. 2 and 4 is upon the plaintiff. The plaintiff has duly proved on record the legal notice dated 29.11.2010 Ex.PW1/1 alongwith postal receipt dated 29.11.2010 Ex.PW1/2. Despite the fact that the defendant has denied the legal dated 29.11.2010, despite multiple opportunities having been granted to the defendant, the defendant has preferred not to crossexamine PW1. The testimony of PW1 Mr. Dharamveer Singh has remained unrebutted and unchallenged. Defendant has also preferred not to Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 8 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 lead any evidence in its defence despite number of opportunities having been granted for this purpose.
16. It has been submitted on behalf of the plaintiff that in Para No. 4 of the plaint it has been categorically stated that the suit property was let out to the defendant for the period from 10.01.2001 to 09.01.2005(should have been 2006) with an option of renewal of the lease for a further period five years subject to payment of enhanced rent @ 9% of the existing rent i.e Rs. 18,000/. The lease was renewed wherein, the rate was enhanced for initial fourfive months but the defendant had stopped making the payment subsequently. The defendant in its written statement in reply to Para No. 4 of the plaint on merits, has categorically stated that the defendant has been making payment @ Rs. 19,620/ till September 2011. It has been submitted on behalf of the plaintiff that a bare perusal of reply to Para No. 4 on merits would clearly show that it is specifically stated by the defendant that the lease deed was for a period of five years starting from January 2001 to January 2005 (Should have been 2006) with an option for renewal for another five years. There is admission made by the defendant itself as it has been stated on behalf of the defendant that the lease deed could only be renewed for another five years, the defendant has remained silent with respect to the fact whether or not the lease period ending in January 2006 was further renewed. It is not the case of the defendant anywhere, in its written statement that there was any further lease after the alleged expiry of lease in the year Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 9 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 2011. It has further been submitted on behalf of the plaintiff that in absence of any specific statement with regard to further renewal of lease period after January 2011 it can be safely ascertained that the lease period had expired in January 2011 and the defendant has been in suit property as mere trespasser/illegal occupant for the period from January 2011 to September 2011. It has also been submitted on behalf of the plaintiff that there can be no logical conclusion to the fact that lease period which expired in January 2011 the defendant had been in occupancy till September 2011 at the same rent of Rs. 19,620/ without any enhancement of rent whatsoever, where a similar property in the area is fetching rent of Rs. 3,00,000/ per month.
17. Learned Counsel for the plaintiff has also submitted that notice for eviction Ex.PW1/1 was also served to the defendant on 29.11.2010 demanding the physical peaceful possession on or before 31.12.2010 which has also been averred in Para No. 9 of the plaint. In reply to Para no. 9 on merits the defendant has admitted the service of notice dated 29.11.2010, therefore, the tenancy expired on 29.11.2010.
18. Learned Counsel for the defendant has submitted that that in Clause 13.2 of the lease agreement dated 25.11.2000, there is provision for the extension of lease after every five years on the last rent drawn with 9 % enhancement. The words used are 'for each block of a period of five years' therefore, the lease is being extended after Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 10 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 every five years. It has further been submitted that the defendant has nowhere stated that the lease agreement could only be renewed for another five years. The defendant has not admitted that the lease agreement between the plaintiff and defendant had expired on 31.12.2010. The acceptance of the revised rent by the plaintiff is sufficient/amount to fact that the agreement is renewed, continuing and plaintiff admitting the same fact by accepting the revised rent till present date as per the terms and condition of the agreement dated 25.11.2000. He has further submitted that after the rent agreement was extended from 10.01.2011, as per Clause 13.2 of the agreement. Learned Counsel for the defendant has further submitted that the lease agreement is renewable after each five years block period and defendant is complying with the agreement and paying the revised rent. The receiving of revised rent by the plaintiff amounts to renewal of the agreement. Plaintiff has nowhere disputed of signing or agreeing to the terms of the lease agreement.
19. A perusal of record further shows that lease deed dated 25.11.2000, Ex. P1 as well as Ex. D1 is the admitted document. As per this premises no K.H. No. 189, Vill & P.O. Kakrola, Najafgarh, Delhi 110043 the commercial space was leased out by Mr. Dharam Veer Singh s/o Late Mr. Daya Ram to Mahanagar Telephone Nigam Ltd., Clause 9.0 of lease agreement shows that the period of tenancy was from 10.01.2001 or the date of actual possession or the date of municipal clearance whichever is earlier @ 18,000/ per month to be Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 11 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 paid on or before 10 th of every English calender month for the month then concurrent inclusive of property/municipal taxes.
20. Clause 13.2 of the agreement is regarding renewal of lease and it reads as under :
"The lease hereby granted shall be renewable for a further term of five years on the same terms and conditions as herein contained except for the rent which shall be the last rent drawn plus 9% enhancement, for each block of a period of five years".
21. Learned Counsel for the defendant has filed report dated 04.11.2016, as per that the rent is being paid as under :
Sl. No. Period of Rent Amount
01 April 2010 to December @ Rs. 19,620/
2010
02 January 2011 to @ Rs. 21,386/
December 2015 (9%
increase)
03 January 2016 to @ Rs. 23,311/
September 2016
(9% increase)
22. Meaning thereby that rent upto September 2016 has been paid. However, as per learned Counsel for the plaintiff (though Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 12 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 plaintiff has not filed the report in respect of rent received despite order dated 02.11.2016) rate of rent has not been enhanced as per the lease deed i.e. 9%. As regard the rate of rent is concerned while deciding application under Order XII Rule 6 of the Code of Civil Procedure, 1908, it was not considered.
23. It is also the admitted case of parties that lease deed dated 25.11.2000 is not registered document. Section 17 of The Registration Act, 1908 reads as under :
"17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,
(a) instruments of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;(c) nontestamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 13 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 yearly rent;
24. It shows that since the initial lease was for a period of five years therefore, it was required to be registered compulsorily and has not been registered. Section 49 of The Registration Act, 1908 reads as under :
"Effect of non registration of documents required to be registered No document required by Section 17 (or by any provision of the Transfer of Property Act, 1882) to be registered shall
a) affect any immovable property comprised therein, or
b) confer any power to adopt, or
c) be received as evidence of any transaction affecting such property or conferring such power, (Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be affected by registered instrument)"25.
26. This unregistered lease deed initially for the period of five years is not admissible piece of evidence. It can only be looked into for collateral purpose.
27. From this it is clear that since the lease deed is not registered piece of document which is admitted by both the parties (Ex. P1 and Ex. D1) it only shows the relationship of landlord and tenant.
Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 14 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 Relationship of landlord and tenant is not disputed by any of the parties. From this it is clear that since the defendant is making the payment of monthly rent, the tenancy is month to month tenancy and not as per the lease for a period of five years or that extended by another five years or being extended for five year block as has been submitted by learned Counsel for the defendant. Learned Counsel for the defendant has emphasized that as per Clause 13.2 of the agreement the renewal of lease for each block of a period of five years, this court is afraid to accept argument of learned Counsel for the defendant that each block of five years implies that lease is to be extended from time to time for a period of five years as the words used are 'each block of a period of five years'. It is also pertinent to note that there is no such communication on record from any of the parties regarding extension of lease period, whether from 10.01.2006 or 10.01.2011 or any other date. Mere payment of rent and acceptance of rent does not entitle the defendant to consider/argue before the court that lease has been extended by the plaintiff.
28. It is pertinent to mention that the present suit has been filed on 10.08.2011 and before that the legal notice dated 29.11.2010 Ex.PW1/1 was also served by the plaintiff, wherein, the defendant has been asked to vacate and handover actual physical peaceful possession of the premises on or before 31.12.2010. During the course of admission denial of documents before the Hon'ble High Court as per annotation dated 03.01.2014 of Mr. S.K. Singh, Manager MTNL legal Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 15 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 notice has been denied. Though the AD receipt Ex.PW1/2 was also filed showing postal stamp of 29.11.2010, it has also been denied by the same person.
29. In reply to the application under Order XII Rule 6 of the Code of Civil Procedure, 1908 there is no specific denial regarding receipt of the legal notice dated 29.11.2010 Ex.PW1/1. The plaintiff in Para No. 9 of the plaint has averred to legal notice dated 29.11.2010 for termination of tenancy. In reply to Para No. 9,10,11,12, & 13 on merits, it has been submitted on behalf of the defendant that defendant had received a legal notice dated 29.11.2010 with false and baseless allegations. The contents of the legal notice have been denied meaning thereby that service of legal notice dated 29.11.2010 has not been denied, however, its content have been denied. This notice is for termination of tenancy. Even the filing of the suit amounts to termination of tenancy.
30. The Hon'ble Supreme Court in case titled as Nopany Investments Pvt. Ltd. v. Santokh Singh (HUF) 2008(2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. In view of the decision in the case of Nopany (supra) this court hold that even assuming the notice terminating tenancy was not served upon the defendant (though it has been served and as held by this court as above) the tenancy would stand terminated on filing of the instant suit against the defendant. Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 16 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017
31. It is noteworthy that Nopany (supra) has also been referred by Hon'ble Delhi High Court in M/s Jeevan Diesels and Electricals Ltd. v. M/s Jasbir Singh Chadha (HUF) & Anr. In RFA No. 179/2011 decided on 25.03.2011.
32. In the suits for rendition of account of a dissolved partnership at Will and partition of HUF property ordinarily, it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. It has been held in various judicial pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore, the suits for dissolution of partnership and partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing of the suit for partition of the HUF property by serving of appropriate notices. Hon'ble the Delhi High Court has opined that similar logic can be applied in suit for possession filed by landlord against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of The Transfer of Property Act 1882. Once the service of the plaint in Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 17 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 the suit is taken to the defendant as a notice terminating tenancy the provisions of Order VII Rule 7 of the Code of Civil Procedure, 1908 can then be applied to take notice of subsequent facts and to hold that the tenancy will stand terminated after fifteen days of receipt of service of summons of the suit/plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 of The Transfer of Property Act, 1882 is to give fifteen days to the tenant to make alternative arrangements. Therefore, the argument cannot be put forth that the tenancy had not been validly terminated and the suit could not have been filed. The court is also conscious of the amendment brought about to Section 106 of The Transfer of Property Act, 1882, in the year 2003, and as per which amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month as long as a period of fifteen days was otherwise given to the tenant to vacate the property. The intention of legislature is therefore, clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises, once the tenant has a period of fifteen days for vacating the tenanted premises.
33. The contents of legal notice dated 29.11.2010 Ex.PW1/1 have been denied. Copy of this notice has been filed along with the suit in the August 2011. Once the summon in the suit along with the documents were served upon the tenant/defendant, the Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 18 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 tenant/defendant would obviously have received such notice. As per record tenant/defendant was served with the summons of suit vide order dated 10.08.2011 passed by Hon'ble Ms. Justice Gita Mittal and status quo order with regard to possession in the suit property was passed. Even if, the date when tenant received a copy of notice when served with the documents in the suit is taken, once again the period of fifteen days has expired thereafter, and keeping the legislative intendment of amended Section 106 of The Transfer of Property Act 1882 in view, the defendant therefore, cannot take stand that the tenancy is not terminated and he did not get a period of fifteen days to vacate the premises. This court is of the view that this position consequently entitled to take notice of subsequent events under Order VII rule 7 of the Code of Civil Procedure, 1908 and taking notice of the subsequent events of the expiry of fifteen days after receipt of the copy of the notice along with documents in the suit. This court held on 05.11.2016 while deciding application under Order XII Rule 6 of the Code of Civil Procedure, 1908 that the tenancy has been validly terminated as on 05.11.2016, the tenant/defendant had no right to stay in the premises.
34. Looking at it from any point i.e. the fact that legal notice dated 29.11.2010 Ex.PW1/1 terminating tenancy was infact served (receipt of notice is admitted by defendant though contents denied), the suit/plaint itself can be taken as a notice terminating tenancy or that the copy of the notice along with documents was duly served to the Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 19 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 defendant way back in the August 2011, this court held on 05.11.2016 while deciding application under Order XII Rule 6 of the Code of Civil Procedure 1908 that the tenancy of defendant/tenant stand terminated and the defendant/tenant was liable to handover possession of the tenanted premises.
35. The aspect regarding month to month tenancy has already been discussed in detail. Even though the monthly rent has been accepted, that only has to be considered as month to month tenancy and not extension of lease as the initial lease dated 25.11.2000 is for five years and not registered which was in violation of section 17 of The Registration Act, 1908.
36. It is also noteworthy that the Hon'ble Supreme Court in Case titled Sarup Singh v. S. Jagdish 2006(4) SCC 205 has held that receipt of rent after termination of tenancy can be taken as charges towards use and occupation because after all a tenant is bound to pay charges till he vacate the tenanted premises.
37. In view of the foregoing, keeping in view the fact that initial tenancy vide lease deed Ex. P1 Ex. D1 was for the five years and the lease deed is not registered lease deed, the monthly rent is being paid, the tenancy is considered to be on month to month basis. The receipt of legal notice dated 29.11.2010 Ex.PW1/1 is also not disputed in the written statement, however, the contents have been denied, in Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 20 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 absence of any reply to legal notice, such denial is not being considered.
38. In plaint as well as in affidavit Ex.PW1/A of plaintiff in his evidence especially para 5 it has been deposed that the market rent of the properties which are of the equal size as that of the suit property are fetching rent of Rs.1,50,000/ per month. In para 7 of his affidavit Ex.PW1/A, the plaintiff has deposed that the properties of equal size in the same locality are fetching more than Rs.3,00,000/ per month. It is noteworthy that testimony of PW1 is unrebutted. Not even a single document in support of rent of similarly located premises of similar size has been placed on record. In these circumstances, this court is of the considered view that the damages claimed @Rs.1,50,000/ per month are on the higher side.
39. Now, the question arises as to the period for which damages/mesne is to be awarded. The plaintiff has claimed it since August, 2005 (as per legal notice Ex.PW1/1 and plaint especially para
9) and since August 2006 (as per para 9 of the affidavit Ex.PW1/A). As per para 11 of the affidavit Ex.PW1/A, the tenancy has been determined with effect from "end June 2011" (01.07.2011). While deciding application under Order XII Rule 6 of the Code of Civil Procedure, 1908 on vide detailed order passed on 05.11.2016 which has attained finality, it was held that since lease deed dated 25.11.2000 Ex.P1 as well as Ex.D1 an admitted document is Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 21 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 unregistered, the tenancy is month to month tenancy. Despite that legal notice Ex.PW1/1 has been served. Termination of tenancy by way of service of legal notice Ex.PW1/1 as well as filing of suit has already been discussed at length in para supra.
40. It is worthwhile to note that learned counsel for the defendant had filed report dated 04.11.2016 before passing of detailed order dated 05.11.2016 for payment of rent. It has not been disputed by the plaintiff at any stage. As per this report rent upto September, 2016 has been paid @Rs.23,311/ from January, 2016. Meaning thereby the last rent paid is @Rs.23,311/ after increase of 9% as already depicted in table reflecting payment of rent.
41. Despite order dated 05.11.2016, vide which Issue No. 1 was decided in favour of the plaintiff and against the defendant and decree of possession has passed, defendant/JD preferred not to vacate the suit premises. Therefore, the defendant is liable to pay the damages/mesne profit @Rs.23,311/ (as per report dated 04.11.2016 of the defendant) for the period from October, 2016 till the defendant vacates the suit premises/hand over the peaceful, physical possession of the suit property i.e. property measuring 200 square yards situated at KHASRA No. 189, Village and Post Office, Kakrola, Najafgarh, New Delhi110043.
42. Now this court has to decide the aspect of interest. As regards Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 22 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 the rate of interest qua issue no. 2, though in the plaint the plaintiff has claimed interest @18% per annum, however, not an iota of evidence is on record in this regard. In view of the aforesaid, this court is of the opinion that the claim of the plaintiff is in the nature of penalty and thus, the same is hit by Section 74 of the Indian Contract Act, 1872. Therefore, the court is inclined to grant simple interest @ 6% per annum on the amount which is due from the defendant, from the date its due till the date of its realization.
43. Accordingly, issue nos. 2 and 4 are decided in favour of plaintiff and against the defendant.
44. Issue No. 3. Whether the plaintiff is entitled for a decree of permanent injunction restraining the defendant, his agents, employees etc. from parting with possession or creating third party interest ? OPP Onus to prove this issue is on the plaintiff. As per record tenant/defendant was served with summons of the suit vide order dated 10.08.2011 passed by Hon'ble Ms. Justice Gita Mittal and status quo order with regard to possession in the suit property was passed. Defendant was also prohibited from changing nature of the suit property which would damage the property in any manner till further orders.
Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 23 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017
45. In all fairness, even though plaintiff has not lead evidence, in this regard, keeping in view the totality of the circumstances, order dated 10.08.2011 passed by Hon'ble Ms. Justice Gita Mittal, order dated 05.11.2016 passed by this court vide which decree of possession was passed and the fact that till date defendant/JD has not vacated the suit premises, this court is of the opinion that defendant be restrained from creating third party interest in the suit property. This issue is disposed off accordingly.
46. Issue No. 5 Whether the suit is liable to be dismissed in view of Clause 12 of the Agreement dated 25 th November, 200 ? OPD Onus to prove this issue is on the defendant. Even though in the written statement, it has been mentioned that in view of Clause 12 of the lease agreement the matter is to be referred to the arbitration, however, it has not at all been pressed or argued on this aspect by learned Counsel for the defendant neither while arguing application under Order XII Rule 6 of the Code of Civil Procedure, 1908 nor the main suit.
47. No evidence has been lead on this aspect by the defendant.
Moreover, the lease agreement Ex.P1 as well as Ex.D1 being unregistered, as already held vide order dated 05.11.2016 is not admissible piece of evidence. It can only be looked into for collateral Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 24 of 25 Suit No. 85/2016 Dharam Veer Singh Vs. MTNL." DOD: 26.04.2017 purpose. This issue is accordingly disposed off as not presssed.
Relief :
48. In view of the specific findings upon all the issues aforesaid, the suit is decreed in favour of the plaintiff and against the defendant as under: "Decree is passed in favour of plaintiff and against the defendant to recover arrears of rent at the rate of Rs.23,311/ w.e.f. October, 2016 per month from the defendant/Mahanagar Telephone Nigam Private Limited, alongwith simple interest @ 6% per annum".
49. Plaintiff shall also be entitled to cost.
50. Decree sheet be prepared accordingly.
51. File be consigned to Record Room.
Dictated & Announced in the (PINKI)
open Court on 26.04.2017 Addl. District Judge01/SouthWest
Dwarka District Courts: New Delhi
Suit for possession, damages, mesne profit and permanent injunction "Decreed" Page No. 25 of 25