Delhi District Court
Smt. Pushpa Lata @ Pushp Lata vs M/S J.S. R. Outsourcing & Ors. on 8 January, 2016
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
CS No. 554/14
Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S. R. Outsourcing & Ors.
Smt. Pushpa Lata @ Pushp Lata
W/o Late Sh. Mool Chand,
r/o C573, Saraswati Vihar,
Pitampura, Delhi110034,
Through her Authorised Representative
Mr. Manish ...............Plaintiff.
Versus
1. M/s J.S.R. Outsourcing,
E983, Second Floor,
Saraswati Vihar, Pitampura,
Delhi.
Through its proprietor Sh. Sudhanshu Bhatnagar.
2. Shri Sudhanshu Bhatnagar,
S/o Shri M.K.Bhatnagar,
R/o 253, First Floor, Bharat Nagar,
Ashok Vihar, Delhi110052.
3. Sh. Mahesh Kumar Mittal,
S/o Late Sh. Bhagirath Mal,
R/o LP5E, Pitampura,
Delhi110034. ...............Defendants.
Date of Institution of the case : 26.09.2013
Date of hearing the arguments : 05.12.2015
Date of announcing the Judgment : 08.01.2016
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Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
J U D G M E N T
1. By this order, I shall pronounce the final Judgment in this case.
2. The facts of the suit filed by the plaintiff, in brief, are as under:
Plaintiff has filed a suit for possession, recovery of rent, damages and injunction. It is stated that plaintiff is an old lady aged about 74 years and is the registered owner of the ground floor and first floor of property bearing no. C573, Saraswati Vihar, Pitam Pura, Delhi. Plaintiff has been residing at B187, Saraswati Vihar, Pitam Pura, Delhi. It is stated that defendant no. 2, proprietor of defendant no. 1 approached the plaintiff through defendant no. 3 to take the first floor of the property on rent. As per the assurance given by defendant no. 3, plaintiff let out the first floor of the suit property in question to defendant no. 1 vide rent agreement dated 19.06.2012. Defendant no.
3 was witness to the rent agreement, for a period of three years starting from 01.06.2012 to 31.05.2015 at a monthly rent of Rs. 40,000/, with increase of 10% after two years which is exclusive of electricity and water charges. Tenancy was residential. Defendant no. 1 paid Rs. 1 Lac as security to plaintiff. Defendant no. 3 asked the plaintiff to increase the load of electric meter, however, under false pretext he got installed another commercial meter in the rented premises in the name of son of plaintiff. Defendant paid rent upto CS No. 554/14 Page No. 2/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
January 2013. Defendants came to plaintiff in last week of December 2012 and requested that defendant no. 1 wants to start a coaching center in the rented premises which was allowed. Defendant no. 1 and 2 assured to pay the charges to the MCD. Plaintiff was, however, shocked to know that her property was sealed by MCD on 28.01.2013 for misuse of the property as instead of coaching center, defendant no. 1 was running an office from the said premises. Tenancy was terminated thereafter. Defendant no. 1 & 2 have not been paying rent since February 2013. Defendant no. 3 took Rs. 5 Lacs from plaintiff under the pretext that he would get the property desealed from MCD and all the losses shall be suffered by defendants no. 1 & 2. Plaintiff further gave an amount of Rs. 20,000/ at the request of defendant no. 1 as she was told that this amount was further required to be paid to MCD and defendant no. 1 asked the plaintiff to adjust this amount from the security amount. The property has not been desealed. Plaintiff has give a legal notice dated 27.01.2013 which has not been replied. Plaintiff gave another notice dated 25.07.2013. However, premises has not been vacated.
3. In their written statement, it is stated by defendants no. 1 & 2 that the defendant came into contact with the plaintiff through defendant no. 3 who is a property dealer. It is further stated that CS No. 554/14 Page No. 3/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
plaintiff represented herself as the owner of the first floor of property bearing no. C573, Saraswati Vihar, Pitampura, Delhi and represent that the said property is a commercial property free from all encumbrances and it was told that on all other floors commercial activity is going on. It is further stated that the defendant agreed to take the first floor of the property on rent and a lease deed for three years was entered into from 01.06.2012 to 31.05.2015 for an agreed rent of Rs. 40,000/ per month. It is further stated that the defendant also paid a security amount of Rs. 1 Lac to the plaintiff and renovated the hall for running a call center and spent around Rs. 13,00,000/ in establishing the call center and also spent Rs. 55,000/ for taking commercial Airtel Broadband services and phone lines. It is further stated that after completion of work on insistence of the plaintiff, the defendant agreed to get the deed registered, however, later on it was revealed to the defendant that the plaintiff had got another deed registered instead of which was shown earlier to the defendant.
It is further stated that the defendant got the commercial electricity connection in the suit premises in question in the month of July 2012. It is further stated that on 29.01.2013, during business hours, a team of MCD officials visited the suit premises in question and ordered defendant and his employees to vacate the suit premises in question. It was informed by the MCD officials that proper notices CS No. 554/14 Page No. 4/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
were sent to the plaintiff well in time but the plaintiff did not inform the defendant about the vacation notice nor ever informed that commercial activity was not allowed in the building. It is further stated that on account of setting up the call center, the defendant has already suffered huge losses and the loss of business and income is a continuing loss to him not less than Rs. 2 Lacs per month.
It is further stated that the suit is liable to be dismissed as the plaintiff has failed to pay the requisite court fees as per Court Fee Act. It is further stated that this court has no jurisdiction to try this matter. It is also stated that the suit has not been filed through properly authorized person as per Delhi High Court Rules.
4. After the completion of pleadings, following issues were framed vide order dated 24.11.2014.
(i) whether the suit filed by the plaintiff is not maintainable as he has suppressed the material facts from the court? OPD.
(ii) Whether the suit filed by the plaintiff is not maintainable as he has not assessed the valuation of suit premises in question as per Suit Valuation Act and has not filed the appropriate advaloram court fees as per the Court Fees Act? OPD.
(iii) Whether the suit filed by the plaintiff is not maintainable as this court has no pecuniary jurisdiction to try this case? OPD. CS No. 554/14 Page No. 5/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
(iv) Whether the plaintiff is not the authorized person to file the present case? OPD.
(v) Whether the plaintiff is entitled for decree of possession of the suit premises in question as prayed for? OPD.
(vi) Whether the plaintiff is entitled for recovery of rent @ Rs. 40,000/ per month since 01.02.2013 to 31.07.2013 in favour of the plaintiff against the defendants, as prayed for? OPD.
(vii) Whether the plaintiff is entitled for recovery of Rs. 5 Lacs from the defendants as prayed for? OPD.
(viii) Whether the plaintiff is entitled for decree of damages of Rs.
1,28,000/ for the period of Rs. 01.08.2013 to 31.08.2013 and further recovery of damages @ Rs. 4000/ per day till the suit vacated by the defendants no. 1 & 2? OPP.
(ix)Whether the plaintiff is entitled for the damages of mental harassment, as prayed for? OPP.
(x) Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants their agents from creating third party interest with regard to the suit premises in question? OPP.
(xi) Any other relief.
5. Before proceeding further, it is necessary to mention here that plaintiff has examined three witness in support of her case. CS No. 554/14 Page No. 6/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
It is further important to mentioned here that defence of defendant no. 3 had been strike off and his right to file the written statement has been closed vide order dated 12.03.2015. Hence, there is no evidence from the side of the defendant no. 3.
It is further important to mention here that defendants no. 1 & 2 have also not led any evidence in their support despite providing ample opportunities and ultimately DE from the side of the defendants no. 1 & 2 was also closed vide order dated 19.09.2015.
6. Arguments heard at length from both the sides. Record is also perused thoroughly as well.
7. My issue wise findings are as under:
Issue No. 1: Whether the suit filed by the plaintiff is not maintainable as he has suppressed the material facts from the court? OPD.
Onus of this issue is upon defendants. There is no evidence led from the side of any of the defendants as mentioned above. It is reflected from perusal of record that there is no documentary evidence from the side of the defendants showing that material facts have been suppressed by the plaintiff nor there is any cross examination of the witnesses of the plaintiff on this aspect from the side of the defendants. Nothing has been stated by the defendants in CS No. 554/14 Page No. 7/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
this regard during final arguments also. In the absence of any evidence in this regard, this issue cannot be decided in favour of the defendants. In terms of these observations, this issue is decided.
8. Issue No. 2: Whether the suit filed by the plaintiff is not maintainable as he has not assessed the valuation of suit premises in question as per Suit Valuation Act and has not filed the appropriate advaloram court fees as per the Court Fees Act? OPD.
Issue No. 3: Whether the suit filed by the plaintiff is not maintainable as this court has no pecuniary jurisdiction to try this case? OPD.
Onus of proof of both these issues is upon the defendants. It is reflected from perusal of record that the present suit has been filed by landlord against the tenant. The oral valuation of the premises has been considered which is just and appropriate as per rules. Nothing contrary to the said valuation has been shown by the defendants nor there is any evidence led on their behalf to controvert the said fact. It is, therefore, reflected from the record and the evidence that defendants have not been able to throw much light upon the relief sought by the plaintiff being deficient of court fees and the court lacking pecuniary jurisdiction. In the absence of any evidence from the side of the defendants, no option is left but to consider the assessment of subject matter of the suit by the plaintiff as correct. CS No. 554/14 Page No. 8/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
Hence, this issue is decided in favour of the plaintiff.
9. Issue No. 4: Whether the plaintiff is not the authorized person to file the present case? OPD.
Onus of this issue is upon the defendant. From the bare perusal of the record, it is reflected that the plaintiff has stated herself to be the owner of the suit property in question. It is further reflected from perusal of the record that the present suit has been filed by Sh. Manish Singhal, who is stated to be authorized Representative of the plaintiff. The affidavit filed alongwith the plaint is that of the Authorized Representative. It is further reflected from the record that PW1 Manish Singhal has been authorized as authorized Representative vide Special Power of Attorney dated 23.09.2013 which has been duly exhibited as Ex. PW1/1.
Nothing contrary to these facts has been shown by the defendants nor there is any evidence from the side of the defendants in this regard. In terms of these observations, this issue is decided in favour of the plaintiff.
10. Issue No. 5: Whether the plaintiff is entitled for decree of possession of the suit premises in question as prayed for? OPD. CS No. 554/14 Page No. 9/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
Issue No. 6: Whether the plaintiff is entitled for recovery of rent @ Rs.
40,000/per month since 01.02.2013 to 31.07.2013 in favour of the plaintiff against the defendant s, as prayed for? OPP.
Issue No. 7: Whether the plaintiff is entitled for recovery of Rs. 5 Lacs from the defendant s as prayed for? OPP.
Onus of all these issues is upon plaintiff. All these issues are taken up together as there is no evidence from the side of defendant to controvert the facts alleged by the plaintiff.
PW1Manish Singhal, who is AR of the plaintiff has stated that plaintiff is the registered owner and in possession of the ground and first floor of property bearing no. C573, Saraswati Vihar, Pitam Pura, Delhi. The authority letter/SPA is Ex. PW1/1. It is further stated that plaintiff has been residing at B187, Saraswati Vihar, Pitam Pura, Delhi. It is stated that defendant no. 2, proprietor of defendant no. 1 approached the plaintiff through defendant no. 3 to take the first floor of the property on rent. As per the assurance given by defendant no. 3, plaintiff let out the first floor of the suit property in question to defendant no. 1 vide rent agreement dated 19.06.2012 for a period of three years starting from 01.06.2012 to 31.05.2015 at a monthly rent of Rs. 40,000/, with increase of 10% after two years which is exclusive of electricity and water charges. Defendant no. 3 was witness to the rent agreement. It is further stated that the tenancy was CS No. 554/14 Page No. 10/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
residential. Defendant no. 1 paid Rs. 1 Lac as security to plaintiff. The copy of registered rent agreement is Ex. PW1/2.
It is further stated that plaintiff paid a commission of Rs. 32,000/ to the defendant no. 3 through cheque. It is further stated that on account of some repairs/ tiles in the suit property in question, the plaintiff also gave a cheque amounting to Rs. 13,700/ to defendant no. 1.
It is further stated that Defendant no. 3 asked the plaintiff to increase the load of electric meter for which he took a DD amounting to Rs. 27,500/ for the said purpose, however, under false pretext he got installed another commercial meter in the rented premises in the name of son of plaintiff. Defendant paid rent upto January 2013.
It is further stated that defendants came to plaintiff in last week of December 2012 and requested that defendant no. 1 wants to start a coaching center in the rented premises and assured to pay the charges to the MDC. Their request was allowed and she gave an amount of Rs. 36,840 to him vide receipt Ex. PW1/3. Plaintiff was, however, shocked to know that her property was sealed by MCD on 28.01.2013 for misuse of the property as instead of coaching center, defendant no. 1 was running an office from the said premises. Tenancy was terminated thereafter. Defendant no. 1 & 2 have not been paying rent since February 2013. Defendant no. 3 took Rs. 5 CS No. 554/14 Page No. 11/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
Lacs from plaintiff under the pretext that he would get the property de sealed from MCD and all the losses shall be suffered by defendants no. 1 & 2. Plaintiff further gave an amount of Rs. 20,000/ from the security amount vide cheque Ex. PW1/4 at the request of defendant no. 1 as she was told that this amount was further required to be paid to MCD and defendant no. 1 asked the plaintiff to adjust this amount from the security amount. The property has not been desealed. Plaintiff has give a legal notice dated 27.01.2013 Ex. PW1/5 which has not been replied. Plaintiff gave another notice dated 25.07.2013 which is Ex. PW1/6 (colly). The permission of Hon'ble Monitoring Committee of Hon'ble Supreme Court of India is Ex. PW1/7. However, despite notice dated 25.07.2013, defendants no. 1 & 2 did not pay any heed for taking out their goods from suit property in question. Hence, they are liable to pay damages since 01.08.2013. Defendants also tried to break the seal of suit property in question.
No material contradictions have emerged during his cross examination and PW1 has corroborated what he stated in his examination in chief.
PW2Ravinder Chhikara, has proved the rent agreement Ex. PW1/2 registered on 21.06.2012 executed between Smt. Pushap Lata i.e. plaintiff and M/s JSR Outsourcing, Proprietor firm through its proprietor Sh. Sudhanshu Bhatnagar.
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This witness has not been cross examined on behalf of the defendants despite opportunity.
PW3Anil Aggarwal is one of the tenants in the property bearing no. C573, Saraswati Vihar, Pitampura, Delhi at basement for last 6 to 7 years. It is further stated by him that the plaintiff is mother in law of his landlord and she rented out the first floor of the said property to defendants no. 1 & 2 for residential purpose on a written registered rent agreement. It is further stated that on 15.03.2013, defendant no. 3 in his presence had assured the plaintiff to get the property de sealed subject to payment of Rs. 5 Lacs and after satisfaction it was decided to give Rs. 5 Lacs in cash to defendant no. 3 for desealing the property from MCD. However, the suit property in question has neither been desealed despite payment of above amount not the said amount has been returned by defendant no. 3.
From the examination of witnesses from the side of the plaintiff and and their cross examination, it is reflected that plaintiff has alleged herself to be the owner and landlady qua the defendants. This fact is not controverted as reflected from the evidence of PW1 and other witnesses. It is further stated by the plaintiff that she had served a legal notice Ex. PW1/6. Execution of rent agreement is also not controverted.
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Reference can be relied upon one judgment titled as Nopani Investment Vs. Sanokh Singh (HUF) cited in AIR 2008 SC 673, wherein it has been held that, "in a case of seeking eviction from the tenant, mere filing of the suit amounts to the notice and is sufficient for seeking possession from the tenant, I am of the considered opinion that Ld. Trial Court has rightly come to the conclusion and rightly decreed the suit in favour of the plaintiff".
Another judgment which can be referred here is titled as SCJ Plastics Ltd. Versus Creative Wares Ltd. 192 (2012) Delhi Law Times 237, passed by Hon'ble Mr. Justice Sh. Valmiki J. Mehta, wherein it has been held that, "even if, the notice of termination of tenancy is defective and strictly not in accordance to section 106 of Transfer of Property Act, then filing of the suit itself amounts to a notice of termination of tenancy to the other party. Therefore, the plaintiff is presumed to have expressed his desire not to continue with the defendant any further who is tenant in the suit property in question. Hence, he/she is liable to be evicted and vacate the premises within reasonable time."
It is reflected from the perusal of above mentioned judgments that once there is no dispute with regard to the landlord tenant relationship and once landlord has expressed his/ her intention to the tenant to vacate the premises, therefore, tenant is liable to vacate the CS No. 554/14 Page No. 14/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
premises. In these circumstances, issue no. 5 is decided in favour of plaintiff.
Plaintiff has alleged that as per rent agreement that the rate of rent was Rs. 40,000/ per month. Execution of rent agreement is not disputed or controverted during evidence. Plaintiff has also alleged during evidence that arrears for the period from 01.02.2013 to 31.07.2013 are outstanding against the defendant. It has already been mentioned above that there is no evidence from the side of the defendants to controvert these facts. Hence, the submissions made by the plaintiff in this regard has to be considered accordingly. Therefore, issue no. 6 is decided in favour of the plaintiff.
It has been further alleged by plaintiff and PW3 that Rs. 5 Lacs were given to the defendants to get the property desealed which has not been utilized properly by the defendants, hence, have been misappropriated by them. These submissions also remained uncontroverted, hence, are considered to have been duly corroborated. Thus, the burden of proving the issue no. 7 is also considered to have been discharged by the plaintiff. In these circumstance, this issue No. 7 is also decided in favour of the plaintiff.
11. Issue No. 8: Whether the plaintiff is entitled for decree of damages of Rs.1,28,000/ for the period of Rs. 01.08.2013 to 31.08.2013 and CS No. 554/14 Page No. 15/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
further recovery of damages @ Rs. 4000/ per day till the suit vacated by the defendant s no. 1 & 2? OPP.
Onus of this issue is upon plaintiff. Plaintiff has alleged during evidence that she is entitled for recovery of damages of Rs. 4000/ per day from 01.08.2013 till 31.08.2013. It is true that there is no evidence from the side of the defendant, however, the reasonableness of the amount claimed by the plaintiff has to be seen and considered. It is stated to have been mentioned in the rent agreement that after the termination of tenancy defendant shall be considered as trespasser and shall be liable to pay damages @ Rs 6000/ per day. Plaintiff has claimed only Rs. 4000/ per day. The locality where the tenanted premises is situated is Saraswati Vihar, Pitam Pura and the rate of rent for the premises has been on the higher side. Considering all these facts and circumstances and the area where the suit property in question is situated, I deem it appropriate that the assessment claiming the damages @ Rs. 4000/ is reasonable. In terms of these observations issue no. 8 is decided in favour of plaintiff.
12. Issue No. 9:Whether the plaintiff is entitled for the damages of mental harassment, as prayed for? OPP.
Evidence led by the plaintiff is perused. Nowhere in the entire CS No. 554/14 Page No. 16/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
evidence of PW1, it is reflected as to what is the basis of claiming such amount from the defendants. PW1 has nowhere explained as to how and in what manner, plaintiff has suffered mental harassment. In these circumstances, in the absence of any evidence to the contrary, the plaintiff can not be said to have discharged the burden of proving this issue. This issue is therefore, decided against the plaintiff.
13.Issue No. 10: Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants their agents from creating third party interest with regard to the suit premises in question? OPP.
Onus of this issues is upon plaintiff. From the evidence of PW1, it is reflected that he has categorically stated in his examination in chief that the defendants have threatened them that they would create third party interest with regard to the suit property in question. It is further stated that the defendants alongwith some bad elements had tried to break open the seal of the suit property in question and threatened them that they would hand over the said premises to some bad elements of the locality after getting it desealed from MCD. No questions have been put to the witness by the defendants in this regard during his cross examination.
In these circumstances, I am of the considered opinion that as all the above issues have been decided in favour of the plaintiff and CS No. 554/14 Page No. 17/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
the plaintiff has been able to establish her prayer seeking possession, hence, she has a well established case with regard to the suit property in question as plaintiff has categorically stated herself to be the owner of the suit property in question and this fact has never been disputed by either of the defendants. Therefore, I am of the considered opinion that it would be in the interest of justice, if such a protection is also granted qua the suit property in question and it would be in the interest of justice, if defendant and his agents etc. are restrained from parting with possession and from creating third party interest with regard to the suit property in question. In terms of these observation, issue no. 10 is also decided in favour of the plaintiff. : In the light of above observations, I am of the considered
14.Relief opinion that the plaintiff has been able to prove her case against the defendants. Hence, the plaintiff is entitled for the reliefs so prayed.
Accordingly, the plaintiff is entitled for the decree of possession of the suit property in question i.e. C573, First Floor, Saraswati Vihar, Pitampura, Delhi110034.
The plaintiff is further entitled for the recovery of rent @ Rs. 40,000/ per month since 01.02.2013 to 31.07.2013.
The plaintiff is further entitled for recovery of Rs. 1,28,000/ towards damages for the period w.e.f. 01.08.2013 till 31.08.2013. CS No. 554/14 Page No. 18/19 Smt. Pushpa Lata @ Pushp Lata Versus M/s J.S.R. Outsourcing & Others.
The plaintiff is further entitled for recovery of damages for encroachment of the suit property in question @ Rs. 4000/ per day since 01.09.2013 till the vacation of the suit property in question by the defendants.
The plaintiff is further entitled for the recovery of the amount of Rs. 5 Lacs from the defendants.
The plaintiff is further entitled for the decree of permanent injunction and accordingly the defendants, their agents, servants, successors etc. are restrained from creating third party interest in respect to the suit property in question i.e. C573, First Floor, Saraswati Vihar, Pitampura, Delhi110034. Cost of the suit is also awarded.
15. The decree sheet be prepared accordingly.
16. Case file be consigned to record room after completion of all necessary formality.
Announced & dictated in the (Prashant Kumar)
open court today i.e. on 08.01.2016 ADJ04(NW)/Rohini Courts
Delhi/08.01.2016
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