Delhi District Court
Shanti Swaroop Goswami (Deceased) vs Parminder Singh on 30 August, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.132/02/95
Santosh Goswami (Deceased)
Through L.Rs
1. Shanti Swaroop Goswami (Deceased)
Through L.Rs:-
(a) Ms. Renu Gandotra
W/o Sh. Sudhir Gandotra
R/o 126-B, Savitri Nagar,
Malviya Nagar,
New Delhi-110017
(b) Ms. Meenu Singh
W/o Sh. Pardeep Singh
R/o 134, Lochanchal Bokaro
Steel City, Jharkhand.
(c) Ms. Poonam Goswami
D/o Late Sh. Shanti Swarrop Goswami
R/o 126-B, Savitri Nagar,
Malviya Nagar,
New Delhi-110017
(d) Rakesh Goswami (Deceased)
Through LRs
(i) Swati Goswami
(ii)Kumari Deepa Shikhar (Minor)
(iii)Kumari Shikha (Minor)
(iv)Master Prashant (Minor)
(Heirs (ii) to (iv) through their next friend & mother Ms. Swati
Goswami)
R/o M-71, Malviya Nagar,
New Delhi-110017
(e) Rajesh Goswami (Deceased & Deleted vide order dated
29.04.2008)
2. Sh. Anand Swaroop Goswami
S/o Late Sh. H.C. Goswami
R/o 169, State Bank Nagar,
Paschim Vihar, Outer Ring Road,
New Delhi.
Suit No.132/02/95 page 1 of page 19
3. Sh. Surinder Kumar Goswami
S/o Late Sh. H.C. Goswami
R/o Sea Crest II,
Andheri Varsova Road,
7-Bungalow, Andheri (West),
Mumbai-400061. .............Plaintiffs
Vs.
1. Parminder Singh
S/o Late Sh. Amrik Singh
2. Maninder Singh
S/o Late Sh. Amrik Singh
3. Satinder Singh
S/o Late Sh. Amrik Singh
4. Smt. Darshan Kaur
W/o Late Sh. Amrik Singh
All R/o House No. M-71-A,
First floor and M-71B,
Malviya Nagar,
New Delhi. ..............Defendants
Date of institution : 19.10.1995.
Date of reservation : 26.07.2011.
Date of pronouncement : 30.08.2011.
JUDGMENT
01. This is a suit for recovery of Possession of the property bearing no. M-71-A, First Floor and M-71-B, Malviya Nagar, New Delhi, recovery of Rs. 1,65,250/- due against the defendants as arrears of rent and damages, jointly and severally along with interest @ 18% per annum till the realisation alongwith future damages @ Rs. 4,000/- per month from November, 1995 till the recovery of possession of the suit premises along with costs, as filed by the plaintiffs against the defendants.
Suit No.132/02/95 page 2 of page 19
02. In brief, the facts of present case as made out in the plaint are that the plaintiff is the owner of the property bearing no. M-71-A and M-71-B, Malviya Nagar, New Delhi. The property is a single unit having number A and B. The plaintiff raised the first floor construction on M-71A. The wall was raised between the A and B. It is stated that Sh.Amrik Singh, father of the defendant no.1 to 3 and husband of defendant no.4 in the year 1985 through Sh. Om Monga, property dealer, approached the plaintiff for creating tenancy in respect of premises no. M-71-B, Malviya Nagar, New Delhi. On the recommendation of Sh.Om Monga, the plaintiff agreed to rent out the abovesaid premises to late Sh. Amrik Singh at a monthly rent of Rs. 1,500/- excluding electricity and water charges.
03. It is the case of the plaintiff that in the month of June, 1990, Sh. Amrik Singh, tenant of the plaintiff, along with Om Monga approached the plaintiff and requested to let out the first floor of the premises no. M-71-A, Malviya Nagar, New Delhi. Plaintiff, since has no problem with Sh. Amrik Singh, had agreed to let out the said portion to him at a monthly rent of Rs. 2500/- excluding electricity and water charges. It was also agreed between the plaintiff and late Sh. Amrik Singh that from June 1990 the tenancy of both the premises i.e.M-71-A, first floor and M-71-B, Malviya Nagar, New Delhi will be treated as single tenancy and the said Sh.Amrik Singh, as per the agreement, used to pay the rent of Rs.4,000/- for the entire both premises. The tenant Sh.Amrik Singh died in the later part of the year 1990 and till then, he has paid the rent of Rs.4,000/- per month excluding electricity and water charges for the single tenancy of both the abovementioned premises to the plaintiff. It is stated that after the death of original tenant, all the defendants being legal Suit No.132/02/95 page 3 of page 19 heirs, became tenant of tenanted premises by virtue of law and started paying the rent of Rs. 4,000/-on the same terms and conditions excluding electricity and water charges. It is stated that the defendants have paid the rent of the tenanted premises till March, 1992 which was paid in the month of April, 1992. It is further case of the plaintiff that despite several requests the defendants neither paid nor tendered the arrears of rent since April 1992, on one pretext or the other. The defendants are also not paying electricity charges and the electricity bill shows huge arrears and the total amount which defendants have to pay for using the electricity comes to Rs.10000/-. It is further stated that when plaintiff failed to make the arrears of rent from the defendant, she approached Sh.Om Monga, through whom the tenancy was created, who also in the first week of March 1995 requested the defendants to pay the entire arrears of rent but the defendants refused to listen him and the defendants instead of paying the rent, have filed a suit for permanent injunction against the plaintiff.
04. It is stated that plaintiff served a legal notice dated 04.07.1995 on the defendants whereby she has terminated the tenancy of the defendant in respect of the tenanted premises and demanded the arrears of rent w.e.f. April 1992 and the defendants have sent the reply dated 30.08.1985 against the said notice. It is further stated that the defendants are unauthorised occupant of the premises in dispute after the termination of tenancy notice and are liable to pay the rent since April 1992 to July 1995, when the tenancy comes to an end by way of notice dated 04.07.1995. It is submitted that the defendants have sent the rent Rs.1,350/- for the month of June to October 1995 on the directions of the Hon'ble Court of Sh. Vipin Kumar Gupta, Ld. Civil Judge, Delhi and the plaintiff accepted the same without prejudice to her rights. It is submitted that the arrears of rent Suit No.132/02/95 page 4 of page 19 from April, 1992 to July, 1995 @ of Rs. 4,000/- per month, which when calculated comes to Rs.1,60,000/- and after deducting Rs.2,700/- as rent sent by the defendants for the months of June and July, 1995 @ Rs. 1,350/- per month and the balance amount comes to Rs.1,57,300/-. It is stated that total rent and damages due from the defendants is Rs.1,65,250/-, hence the present suit is filed.
05. Defendants contested the present suit by filing detailed written statement, while taking preliminary objections that properties bearing No. M-71A & M-71B, Malviya Nagar, New Delhi are the separate properties and have been let out to the separate tenants. The tenancy of M-71 B, Malviya Nagar is not the joint with M-71A, Malviya Nagar, New Delhi; the suit is liable to be dismissed as such, u/o 7 rule 11 CPC as no cause of action has arisen; suit is liable to be stayed u/s 10 of CPC on the ground that the controversy raised in the present suit is the same and identical with respect to the tenancy of the property bearing no.M-71B, Malviya Nagar, New Delhi. It is submitted that in the year 1985, the plaintiff has let out the premises bearing no. M-71 B, Malviya Nagar, New Delhi on a monthly rent of Rs. 1050/- for residential use to Sh.Amrik Singh and at the time of letting, Sh. Amrik Singh has paid an amount of Rs.5,000/- by way of security to the plaintiff against the duly acknowledged receipt by the plaintiff. It is further submitted that thereafter, the rent of the premises i.e.M-71-B, Malviya Nagar, New Delhi has been increased from time to time and now, an amount of Rs. 1,350 is being paid separately & regularly without any delay. It is the plea of the defendants that in the year 1988 the defendant no.1 Sh.Parminder Singh, got married and thereafter, the defendant no. 1 approached the plaintiff for taking premises i.e. M-71A, Malviya Nagar, New Delhi, for the residential Suit No.132/02/95 page 5 of page 19 use and the plaintiff let out the premises bearing no.M-71A, ground floor, Malviya Nagar, on a monthly rent of Rs.1,350/- for residential purposes and defendant no.1 alongwith his wife started living separately in the tenanted premises. In the year 1990, the plaintiff represented to the defendant no.1 that plaintiff, due to retire, would like to shift on the ground floor of premises no.M-71A and let out the first floor of the said premises to the defendant no.1 and thereafter, the defendant no.1 has shifted to the premises bearing no. M-71A, first floor,Malviya Nagar New Delhi and the rent was also increased to Rs.1550/- per month excluding electricity and water charges. It is submitted that defendant no. 1 is a tenant in his own rights in the premises and the tenancy of M-71A is a separate and individual in favour of defendant no.1 only and defendant no.1 is protected under the Delhi Rent Control Act. The defendant no.2 to 4 have paid their rent separately to the plaintiff, even during the lifetime of Sh.Amrik Singh. The defendant no.1 has tendered the rent for the premises M-71 first floor in cash, which the plaintiff has accepted till June 1995. The defendant no. 2 has paid the rent for the premises bearing no.M-71B occupied by defendant no.2 to 4 till date, but the plaintiff had not issued any receipt for for the rent tendered by them. On merits, the contents of plaint have been denied and it is submitted by defendants that suit of the plaintiff be dismissed with heavy cost.
06. Plaintiff filed the replication, whereby, she denied the facts as mentioned in written statement, while reaffirming the contents as made in the plaint.
07. From the pleadings of the parties following issues were framed vide order dated 10.01.1996:-
1. Whether plaintiff is liable to be dismissed under Order VII Rule Suit No.132/02/95 page 6 of page 19 11 CPC as mentioned in para no. 2 of preliminary objections? OPD
2. Whether the suit is not maintainable and is liable to be dismissed under the provisions of Section 15 of the Delhi Rent Control Act? OPD
3. Whether the tenancy of the defendant in respect of the premises no. M-71A (first floor) and M-71B (Ground floor) is single and composite one as mentioned in the plaint? OPD
4. Whether there are two separate tenancies in respect of the said premises bearing no. M-71 A (First Floor) and M-71B (Ground Floor)? OPP
5. Whether the plaintiff is entitled to arrears of rent as well as damages in respect of the suit property as claimed? OPP
6. Whether the defendant has paid all the arrears of the rent as mentioned in the written statement? OPD
7. Whether the plaintiff is entitled to recover the possession of the suit premises? OPP
8. Relief.
08. In support of its case, plaintiff examined Ms. Santosh Goswami as PW-1, Sh. Om Prakash as PW-2, Sh. Sunil Mehra as PW3. On the other hand, defendant examined himself as DW-1, Sh. Maninder Singh as DW2, Sh. Hakim Singh, Bill Clerk, MCD as DW-3, Sh. Vijay Kumar as DW-4, Dh. Mani Ra as DW-5, Sh. K.R. Maurya, Zonal Inspector, House tax Department, Sh. Nirmolak Singh as DW-7, Sh. Naresh Kumar LDC, Food & Supply, Delhi Admn., Delhi as DW-8 and Sh.Arvind Chopra, UDC from Food & Supply department as DW-9.
09. I have heard ld. counsel for parties as well as perused the Suit No.132/02/95 page 7 of page 19 material placed on record and written arguments as filed on behalf of both the parties. My issue wise findings are as under:-
Issue no.1.
10. Onus to prove this issue was upon the defendant. Ld.counsel for defendants argued that plaint is liable to be dismissed u/o 7 rule 11 CPC as same is without any cause of action. Ld. counsel for defendants further submitted that defendant no.1 is a tenant in his own rights, in respect of property M-71A, Malviya Nagar, New Delhi and other defendants have no concern whatsoever, in any manner in respect to the tenancy of defendant no.1. Cause of action is bundle of facts. A bare perusal of plaint shows that plaintiff filed the present suit as owner of property bearing no.M-71A and M-71B, Malviya Nagar, New Delhi and defendants are stated to be tenants for entire both premises as a single tenancy @Rs.4,000/- per month. It is further averred by the plaintiff that the tenancy of the defendants have been terminated by serving a legal notice dated 04.07.1995 and thereafter, they have become an unauthorised occupants. Therefore, the averments as made in the plaint itself shows that plaintiff has a cause of action to file the present suit. Accordingly, this issue is decided against the defendants and in favour of plaintiff. Issue no.3.
11. Onus to prove this issue was upon the plaintiff. PW-1 Ms.Santosh Goswami deposed that she is the owner of the property in dispute bearing no.,M-71-A, and M-71-B, Malviya Nagar, New Delhi, and proved the copy of sale deed as Ex.PW-1/A. PW-1 deposed that the property in dispute is a single property and is allotted as single unit and she came to reside at the ground floor of M-71-A in March 1992. PW-1 further deposed that in August 1985, the property bearing no.M-71-B was Suit No.132/02/95 page 8 of page 19 given to one Sh.Amrik Singh, on a rent of Rs.1,500/- per month exclusive of water and electricity. No rent deed was executed between the parties except a receipt of Rs.5000/- in favour of Amrik Singh and in the month of June 1990, she had let out the first floor portion of M-71-A, Malviya Nagar, New Delhi, to Sh.Amrik Singh, @Rs.2500/- per month. There was no written agreement regarding letting out to Sh.Amrik Singh as there were cordial relations between them and at the request, premises was let out to him and it was orally agreed that the rent of both the premises will be Rs.4,000/- per month excluding water and electricity charges. Both the premises had separate electricity and water meters. PW-1 further deposed that she has let out the property in dispute to Sh.Amrik Singh through one property dealer Sh.Om Monga and Amrik Singh used to pay Rs.4,000/- per month for the entire property in dispute. Amrik Singh expired in the end of the year 1990 and after him, the defendants have become her tenants and the defendants paid the rent to her upto March 1992, which was paid in April 1992. PW-1 confirmed in her cross examination that she has purchased the plot approximately in the year 1959 and at that time also, this property consists number M-71/A.B. PW-1 further denied the suggestion that there are two separate tenancy with respect to premises no.M-71-A and M-71-B.
12. PW-2 is Sh.Omprakash, property dealer, who deposed that tenancy of the premises M-71-B, Malviya Nagar, New Delhi was created through him by plaintiff in favour of Amrik Singh, the father of the defendant no.1, 2 and 3 and husband of defendant no.4. The rent was settled Rs.1,500/- per month excluding water and electricity charges. PW-2 further deposed that in June 1990, Amrik Singh had approached him to request the plaintiff to let out the first floor of M-71-A, Malviya Nagar, Suit No.132/02/95 page 9 of page 19 New Delhi. The plaintiff has also rang up regarding creating the tenancy. The rent was settled Rs.2500/- per month excluding water and electricity and was mutually created by parties. PW-2 further deposed that the entire suit premises comprising of M-71-B, Malviya Nagar and first floor, M-71- A, Malviya Nagar is a single house and it was settled between the parties that the tenancy will be one in favour of Amrik Singh. The entire suit premises was let out by plaintiff in favour of Amrik Singh. In his cross examination, PW-2 confirmed that two sets of houses are built up on one plot and he had only let out one flat and he had not visited premises in dispute after the year 1985. PW-2 further confirmed that he has never acted as a commission agent for letting out any property to Sh.Amrik Singh, after the year 1985 and he has not acted as an commission agent of the tenancy of the first floor of M-71-A, Malviya Nagar, New Delhi.
13. PW-3 Sh.Sunil Mehra, who deposed that he know both the plaintiffs and defendants as he is tenant of the plaintiff in respect of second floor and is paying Rs.2000/- excluding water and electricity charges to plaintiff. PW-3 further deposed that all the defendants no.1 to 4 resides at first floor, M-71-A, Malviya Nagar, New Delhi, apart from this, they have also in possession of another portion of the house which is M-71-B, Malviya Nagar, New Delhi and all the defendants are sharing the tenanted premises and had joint mess. In his cross examination, PW-3 deposed that accommodation bearing M-71-B, Malviya Nagar, New Delhi is being shared by the defendants alongwith accommodation of premises no. M-71-A, Malviya Nagar, New Delhi. M-71-B is adjacent to M-71-A.
14. The main controversy between the parties is that, whether the tenancy of defendants in respect of first floor, M-71-A, Malviya Nagar, New Delhi and M-71-B, Malviya Nagar, New Delhi, is single tenancy, in Suit No.132/02/95 page 10 of page 19 favour of Sh.Amrik Singh, i.e.father of defendant no.1 to 3 and husband of defendant no.4 , @Rs.4,000/- per month or same are separate tenancies and property bearing No. M-71-A, Malviya Nagar, New Delhi, was let out to defendant no.1 in his separate individual capacity. Admittedly, Ms.Santosh Goswami was the owner of the property bearing no. M-71-A and B, Malviya Nagar, New Delhi and at the time of purchase of the plot, the property consists no. M-71/A.B, Malviya Nagar, New Delhi. It is the case of plaintiff as pleaded in the plaint that property no. M-71-B, Malviya Nagar, New Delhi was let out to Sh.Amrik Singh in August 1985, through Sh.Om Monga, property dealer at a monthly rent of Rs.1,500/- excluding electricity and water charges and inthe month of June 1990, Sh.Amrik Singh, tenant of the plaintiff, alongwith Sh.Om Monga approached the plaintiff and requested to let out the first floor of the premises M-71-A, Malviya Nagar, New Delhi. Ld. counsel for defendant vehemently argued that Sh.Om Monga, in his cross examination, has confirmed that he has not acted as a commission agent for the tenancy of first floor of M-71-A, Malviya Nagar, New Delhi and both of parties were dealing directly with regard to premises let out to them after year 1985. However, PW-2 Sh.Om Monga, specifically deposed that in June 1990 Amrik Singh had approached him to request the plaintiff to let out the first floor of M-71-A, Malviya Nagar, New Delhi and the plaintiff had also rang up regarding creating the tenancy and the rent was settled Rs.2500/- per month and the entire suit premises comprising of M-71-B, Malviya Nagar, New Delhi and first floor of M-71-A, Malviya Nagar, New Delhi is a single house and it was settled between the parties that the tenancy will be one in favour of Sh.Amrik Singh. This testimony of PW-2 remain un-controverted. Even a suggestion was not given to PW-2 in this regard or rate of rent. No Suit No.132/02/95 page 11 of page 19 doubt, PW-2 did not act as a commission agent for the tenancy of first floor of M-71-A, Malviya Nagar, New Delhi, but, he deposed in respect of the transaction of letting out the entire suit property as a one tenancy after Sh.Amrik Singh approached him in the year 1990, which supports the case of plaintiff.
15. PW-3 Sh.Sunil Mehra is another witness who is tenant of second floor of property no. M-71-A, Malviya Nagar, New Delhi, also supports the contentions of plaintiff in respect of single tenancy and specifically deposed that all the defendant no.1 to 4 resides at first floor M-71-A, Malviya Nagar, New Delhi, and they have also in possession of another portion of the house which is M-71-B, Malviya Nagar, New Delhi and all the defendants are sharing the tenanted premises and joint mess. The testimony of PW-3 to the aforesaid effect remain un-controverted and even a suggestion was also not given to this witness that there were two separate tenancies or all the defendants are not residing in M-71-A, Malviya Nagar, New Delhi or had not joint mess.
16. Perusal of record shows that vide order dated 17.11.1997, Sh.Saurabh Sharma, Advocate, was appointed as a Local Commissioner and he was directed to visit and inspect the premises no. M-71-A, and M-71-B, Malviya Nagar, New Delhi and to report about the articles mentioned in the application, lying in the said premises and that said premises is in possession of defendant no.2 or some other defendant. The commissioner gave his report while concluding that all the four defendants in joint possession of premises no.M-71-A, first floor and M-71-B, ground floor, Malviya Nagar, New Delhi and the report of commissioner was exhibited as C-1. Although, the defendants filed their objections to the report of Local Commission but none of the parties summoned the Local Suit No.132/02/95 page 12 of page 19 Commissioner, to confront him in respect of his report. Admittedly, at the time of first tenancy a security of Rs.5000/- was given to plaintiff. Therefore, alleged separate tenancy of M-71-A, without receiving any security is not appealable. In view of above reasons and testimony of PW-2 Sh.Om Monga, property dealer and PW-3 Sh.Sunil Mehra, who is also a tenant of second floor of the same premises, I am of the considered opinion that the entire suit premises is single and composite tenancy in favour of Sh.Amrik Singh i.e.late father of defendant no.1 to 3 and husband of defendant no.4 @ Rs.4,000/- per month. Accordingly, this issue is decided in favour of plaintiffs and against the defendants. Issue no.4.
17. Onus to prove this issue was upon the defendant. DW-1 Sh.Parminder Singh, deposed that he has taken on rent premises no. M-71-A, ground floor, from Ms.Santosh Goswami in the year 1988 and was paying rent @Rs.1,350/- per month and on request of plaintiff, he shifted to the first floor of the premises in the year 1990 and rent was also increased to 1550/- per month instead of Rs.1,350/- per month. DW-1 proved the copy of Ration Card Ex.DW-1/A, Gas connection Ex.DW-1/B, birth certificate of his son Ex.DW-1/C. DW-1 deposed that he has his separate electricity connection and has no concern with M-71-B, Malviya Nagar and no other family member is residing with him. DW-1 deposed that M-71-A and M-71-B are two different premises. In his cross examination DW-1 confirmed that no documents was executed when he shifted his residence from ground floor to first floor of the said house in June 1990 and no rent receipt was issued on his request and he did not issue any notice to the plaintiff in respect of non issuance of rent receipt. DW-2 Sh.Maninder Singh who deposed that he is living in the premises Suit No.132/02/95 page 13 of page 19 M-71-B with his mother and younger brother and he got married on 14.09.97 and his wife and two children are also residing at the same premises and produced the copy of Ration Card Ex.DW-2/2 and also proved the copy of subscription voucher Ex.DW-2/3 and passport Ex.DW-2/4. DW-3 is Sh.Hakim Singh, bill clerk, MCD who brought the record containing statement dated 03.03.1992. DW-4 is Sh.Vijay Kumar, clerk of M/s.R.K.Agencies, who deposed that gas connection no.23292 exists in the name of Sh.Maninder Singh and they are delivering the gas to Sh.Maninder Singh at M-71-B, Malviya Nagar, New Delhi since 1992 and proved the photocopy as Ex.DW-4/1. Similarly, DW-5 proved the copy of gas connection in the name of Parminder Singh as Ex.DW-5/A. DW-6 is Sh.K.K.Maurya, who also brought the certified copy of statement of Ms.Santosh Goswami dated 03.03.1992 available in their record and proved the same as Ex.DW-6/1. DW-7 is Sh.Nirmolak Singh, brother of Sh.Amrik Singh, who deposed that when the tenancy was created in the year 1985, he was present and the rent was agreed at Rs.1050/- per month, excluding electricity and water charges. In his cross examination, DW-7 denied that he was not present at the time of creation of tenancy. PW-8 is Sh.Naresh Kumar, LDC, who produced the copy of Ration Card dated 11.10.1996 and proved the photocopy of Ration Card as Ex.DW-8/1. DW-9 is Sh.Arvind Chopra, is also UDC from Food and Supply Department, who proved the copy of Ration Card as Ex.DW-9/1.
18. The fact that premises M-71-A and M-71-B have different water and electricity connections, is admitted by the plaintiff in his examination in chief. The fact that defendants have their separate Ration Card or passport, with address of M-71-A or M-71-B, does not show that they are having separate tenancies. When the premises in question bears Suit No.132/02/95 page 14 of page 19 separate numbers as M-71-A and M-71-B, the defendants can get the documents on any of the address being family members and same cannot be considered as a proof of separate tenancy. As far as contention of the counsel for defendant in respect of statement of plaintiff before municipal authorities in respect of assessment of house tax is concerned, the PW-1 has clarified in his cross examination that she had not given any statement to the house tax authorities with respect to the occupancy of the defendants. There is no independent cogent evidence on behalf of defendant to show that there were two separate tenancies in respect of premises bearing no.M-71-A first floor and M-71-B, ground floor. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
Issue no.7.
19. Onus to prove this issue was upon the plaintiff. PW-1 deposed that the defendants paid the rent to her upto March 1992 which was paid in April 1992 and thereafter, she has made several requests to pay the rent but, no rent was paid and she has served them legal notice dated 04.07.1995 and proved the same as Ex.PW-1/2. PW-1 further deposed that she received the reply thereof, which is Ex.PW-1/3. PW-1 further proved the site plan as Ex.PW-1/4 and 5, bearing her signature and prepared in her presence. Admittedly, the tenancy was oral between the parties and as per my findings on issue no.3, the tenancy of the defendant is single and composite @Rs.4,000/- per month. Section 106 of Transfer of Property Act provides that in absence of a contract, a lease of immovable property shall be deemed to be a lease from month to month terminable on the part of either lesser or lessee by 15 day's notice. In absence of any contract, the lease between the parties is deemed to be a lease from month to month Suit No.132/02/95 page 15 of page 19 terminable on the part of either party by 15 day's notice. The service of notice Ex.PW-1/2 upon the defendants is not in dispute. Rather defendants have also given their reply Ex.PW-1/3. Vide notice Ex.PW-1/2 the defendants were called upon to handover the vacant possession of tenanted premises within two months from the receipt of that notice. Therefore, after a period of two month from service of notice, the possession of defendants in suit premises is of unauthorised occupants. Accordingly, plaintiff is entitled for recovery of possession of suit premises as shown in site plan Ex.PW-1/4 and 5. Accordingly, this issue is decided in favour of plaintiffs and against the defendants.
Issue no.6.
20. The onus to prove this issue was upon the defendants. Defendants in their written statement submitted that defendant no.1 has paid the rent [email protected]/- in respect of premises bearing no.M-71-A, first floor, Malviya Nagar, New Delhi, in cash, which the plaintiff has accepted till June 1995 and defendant no.1 to 4 have paid the rent of premises bearing no.M-71-B, @Rs.1,350/- per month separately and regularly, without any delay. However, defendant no.2 in his examination in chief recorded on 25.04.2000 deposed that he has paid the rent upto April 2000, which is contrary to the stand as taken in the written statement. DW-1 further confirmed in his cross examination that no rent receipt was issued on his request and he did not issue any notice to the plaintiff in respect of non issuance of rent receipt. In absence of any rent receipt, the burden to prove was upon the defendants to show that they had paid the rent upto date. However, defendants have failed to discharge their onus. Accordingly, this issues is decided against the defendants and in favour of plaintiffs.
Suit No.132/02/95 page 16 of page 19 Issue no.2.
21. Onus to prove this issue was upon the defendant. It was the contention of the defendants in their written statement that present suit is not maintainable and is liable to be dismissed under provision of DRC Act as there were two separate tenancies and rate of rent was below Rs.3500/- and as such, the suit of the plaintiff is barred u/s 50 of DRC Act. In view of my findings on issue no.3 and 4 that there was only single and composite tenancy, in respect of premises no.M-71-A and M-71-B, Malviya Nagar, New Delhi, in favour of Sh.Amrik Singh @Rs.4,000/- per month, the present suit is not barred under the provision of DRC Act. Accordingly, this issue is decided against the defendants and in favour of plaintiffs.
Issue no.5.
22. Onus to prove this issues was upon the plaintiff. PW-1 deposed that the defendants paid the rent to her upto March 1992 which was paid in April 1992. PW-1 further claimed damages @Rs.4,000/- per month after termination of the tenancy. PW-1 deposed that the defendants have paid her the rent @Rs.1,350/- per month from June 1995 under the direction of Sh.Vipin Kumar Gupta, Ld.Civil Judge, in a case filed against them. As far as arrears of rent is concerned, in view of my findings on issue no.6 that defendant has failed to prove that they have paid all the arrears of rent as mentioned in the written statement, the plaintiff is entitled for arrears of rent w.e.f.April 1992 till the termination of tenancy vide notice Ex.PW-1/2 dated 04.07.1995 i.e.till October 1995, @Rs.4,000/- per month. Amount, if any, received by the plaintiff pursuant to the order of court, as a rent, for the aforesaid period, shall be adjustable.
23. Now, the next question comes to decide, as to what amount Suit No.132/02/95 page 17 of page 19 plaintiff is entitled for damages, for unauthorised use and occupation of the suit property and interest if any, after termination of tenancy i.e.two months after the date of receipt of notice dated 04.07.1995 Ex.PW-1/2. The defendants have given the reply of the notice i.e.Ex.PW-1/3 dated 30.08.1995, which itself shows that defendant received the legal notice and after two months from receipt of notice dated 04.07.1995, they are unauthorised occupants qua suit property. The plaintiff has claimed damages @Rs.4,000/- per month after termination of tenancy, i.e. w.e.f. November 1995, which was also the rate of rent qua tenanted premises before termination of tenancy. No evidence is led by plaintiff to show that as to what extent, the property can fetch the rent, thereafter. In an authority reported as 1993 RLR 563 titled as Bakshi Sachdev (D) by LRs Vs. Concord (I), it was held by Hon'ble Delhi Court and I quote:-
"Evidence Act, S.57, Judicial notice of fact that increase of rents in Delhi have occurred, can be taken. Mesne profits or damages for use and occupation after termination of tenancy can be substantially more than the agree rent"
24. No doubt, the suit premises exists in New Delhi, where the increase of rent is manifold, however, keeping in view the facts and circumstances of the case and the fact that the plaintiff has claimed damages @Rs.4,000/- per month, interest of justice would met, if the plaintiff is awarded damages w.e.f. November 1995 @Rs.4,000/- with the increase of 10% for a period of three years and similarly, with increase of 15% of the amount, payable on December 1998 and so on, after every three years till realisation. Plaintiff is also entitled for interest @8% on the above so calculated damages, from November 1995 till realisation. The amount if any, paid as rent during the pendency of the suit by the Suit No.132/02/95 page 18 of page 19 defendant, shall be adjustable, against the so calculated damages and the interest shall be chargeable only on so adjusted amount. Plaintiff has to pay the court fees on so calculated damages within four weeks. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Relief.
25. In view of my findings, on the above said issues, the suit of the plaintiff stands decreed with costs in favour of plaintiffs and against the defendants and a decree of possession is passed in respect of suit property i.e.M-71-A, and M-71-B, Malviya Nagar, New Delhi as per site plan Ex.PW-1/3 and 4. plaintiff is entitled for arrears of rent w.e.f.April 1992 till the termination of tenancy vide notice Ex.PW-1/2 dated 04.07.1995 i.e.till October 1995, @Rs.4,000/- per month. Amount, if any, received by the plaintiff pursuant to the order of court, as a rent, for the aforesaid period, shall be adjustable. Plaintiff is also awarded damages @ Rs.4,000/- with the increase of 10% after termination of tenancy from November 1995 for a period of three years and similarly, with increase of 15% of the amount, payable on December 1998 and so on, after every three years till realisation. Plaintiff is also entitled interest @8% on the above so calculated damages, from August 1995 till realisation. The amount if any, paid as rent during the pendency of the suit by the defendant, shall be adjustable, against the so calculated damages and the interest shall be chargeable only on so adjusted amount. Plaintiff has to pay the court fees on so calculated damages within four weeks. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court ( S.K.MALHOTRA ) on 30.08.2011. SCJ/RC/(North)/DELHI Suit No.132/02/95 page 19 of page 19