Delhi District Court
Judgment vs . on 4 July, 2015
11
In the court of Ashwani Kumar Sarpal, Additional District Judge-1,
North East District, Karkardooma Courts, Delhi
RCA no.- 17/15
Sh. Ramesh Kumar
vs.
Sh. Satish Kumar
Date of filing of appeal-------- 30.04.2015
Date when order reserved-----01.07.2015
Date of final decision-----------04.07.2015
(APPEAL AGAINST THE JUDGMENT & DECREE DATED 30.03.2015 PASSED IN
CIVIL SUIT NO. 20/139 BY COURT OF SH. ANKUR JAIN, JSCC/ASCJ/
GUARDIAN JUDGE (NE) KARKARDOOMA COURTS, DELHI)
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JUDGMENT:-
Appellant/plaintiff filed suit for possession, recovery of arrears of rent and uses charges against the respondent/defendant in respect of one room situated on the 1 st floor of the property bearing no. 572, Gali No. 10, Near Water Tank, Village Mandoli, Shahdara, Delhi as shown in red colour in the site plan (herein after referred to as suit property).
Plaintiff alleged that defendant is tenant in the suit property since January, 2008 on the monthly rent of Rs. 2,500/- excluding the electricity charges and no written rent agreement was executed between him and the defendant. He also alleged that 22 defendant at the instigation of his Bua's namely Smt. Krishna Devi and Smt. Shakuntala Devi stopped making payment of rent to him since April 2010. Plaintiff vide legal notice dated 05.09.2012 terminated the tenancy of the defendant from midnight of 31.08.2012 and through the suit demanded arrears of rent of Rs. 72,500/-, use and occupation charges @ Rs. 500/- per day w.e.f. 01.09.2012 besides claiming the possession of the suit property.
Defendant challenged the locus standi of the plaintiff and disputed his status as of landlord by alleging that the suit property was let out to him by Smt. Krishna Devi and Smt. Shakuntala Devi at the monthly rent of Rs.1,000/-. Defendant also disputed of making payment of any rent to the plaintiff ever and also alleged that he is even not owner of the property because a civil suit for partition is pending between his father and his Bua's.
The Ld. Trial Court after full fledged trial dismissed the suit with compensatory costs of Rs. 50,000/- against which now plaintiff has come in appeal in this court. I have heard counsel for both the parties and gone through the Trial Court record.
The issue no. 1 framed by the Ld. Trial Court was in respect of existence of any relationship of landlord and tenant between the plaintiff and the defendant. The findings on this issue were given against the plaintiff and consequently all other issues were decided against him. I have gone through the decision of the Ld. Trial Court on this issue and find no reason to differ with it. Neither in the plaint nor in the legal notice of termination of tenancy, plaintiff ever alleged that he is the owner of the suit property. During his examination in chief, plaintiff tried to prove GPA, Will, Gift deed etc. dated 07.02.2001 Ex. PW1/6 (Mark-A collectively) executed in his favour by Sh. Khajan Singh to show his ownership and title of the suit property but subsequently he got de-exhibited those documents which clearly 33 means that he was not relying upon the same and had forgo the claim of ownership/title of the suit property. Hence, plaintiff in the capacity of the alleged owner could not let out the suit property to the defendant in any circumstances.
This fact is not in dispute that property belonged to Sh. Khajan Singh, grand father of the plaintiff. He died leaving behind his widow Smt. Chajjia Devi who has also expired. In his cross examination, PW-1 plaintiff admitted that in respect of the property, a partition suit between his father and his both Bua's is still pending. After death of Sh. Khazan Singh and Smt. Chajjia Devi, the property is inherited by his Bua's Smt. Krishna Devi and Smt. Shakuntla Devi as well as his father Sh. Om Parkash in equal proportions. When a civil suit for partition is pending between the children of Sh. Khazan Singh and Smt. Chajjia Devi, then the plaintiff does not get any right, title or interest in the property when his own father is still alive so he cannot be termed as a co-owner of the suit property and competent to file the suit. Plaintiff is also not appointed attorney by his father being the co- owner of the suit property to file suit on his behalf. Moreover, when plaintiff is not alleging the ownership of the property in plaint and legal notice as well as also got the alleged ownership documents de- exhibited in his examination in chief itself, then he cannot be allowed even to argue that being the owner of the property, he was entitled to let out the property to the defendant and to take the rent from him. Plaintiff also cannot be treated as landlord of the defendant when his own witness PW-2 admitted in his cross examination that the defendant was paying rent to Smt. Krishna Devi. Plaintiff has not produced any rent receipt to show that he ever received any rent from the defendant. If his statement is taken into consideration, then it also leads to the inference that he has no knowledge when the tenancy of defendant started. In his cross examination, plaintiff specifically 44 stated that defendant came in the property as a tenant on 12.01.2011, whereas in his plaint and the legal notice the month of January 2008 is mentioned as an inception of the tenancy. Otherwise also, the payment of rent to Smt. Krishna Devi, one of the co-owner of the property by the defendant amounts to payment of rent to all and extinguish his liability.
Plaintiff through witness PW-3 proved the GPA Ex. PW3/A executed by Sh. Khazan Singh in his favour. It is argued that on the basis of this GPA, the suit was maintainable. First of all, this GPA has come to an end on the death of Sh. Khazan Singh and secondly it was related to one specific shop and not in respect of the suit property in possession of the defendant. Plaintiff was thus incompetent to file the suit for recovery of the suit property even if it is presumed that the GPA Ex. PW3/A is still valid and not automatically cancelled due to death of its executant Sh. Khazan Singh.
During arguments, reliance is also put on the deed of Will of Sh. Khazan Singh but the same is not proved as per law due to non examination of any attesting witness. Another document i.e. gift deed is inadmissible in evidence being not registered and insufficiently stamped. Furthermore, these documents relied upon by the counsel for the plaintiff during arguments cannot be looked into when the same were not relied upon in evidence and specifically got de- exhibited.
In such circumstances, it can be said that the plaintiff was neither the owner of the suit property nor the landlord and accordingly has no locus standi to file the suit. Even if for the sake of arguments, it is presumed that he is a landlord and having locus standi, then also the suit qua the relief of possession was not maintainable at all in the civil court because the alleged rate of rent was Rs. 2,500/- per month and suit is barred under Section 50 of the DRC Act. Accordingly, the 55 findings of the Ld. Trial Court on issue no. 1 are correct and do not deserve any interference.
The Ld. Trial Court decided the other issues also against the plaintiff in respect of recovery of arrears and use/occupation charges due to the adverse findings given on issue no. 1. The decision of the Ld. Trial Court is also correct in this regard. When there is no relationship between plaintiff and defendant as of landlord and tenant, then the plaintiff is not entitled to recover any alleged arrears and use and occupation charges. Ld. Trial Court was fully justified in dismissing the suit by holding that plaintiff had filed a frivolous suit, wasted the precious court time and unnecessarily dragged the defendant in the litigation. Hence, the dismissal of suit by the ld. Trial Court was a right and correct decision.
Counsel for plaintiff has also challenged the powers of Ld. Trial Court in imposing the cost of Rs. 50,000/- by arguing that under Section 35-A CPC maximum cost of Rs. 3,000/- can be imposed. According to counsel for the plaintiff, the passing of order of payment of compensatory costs of more than Rs. 3,000/- is illegal.
Counsel for defendant cited case law Ramrameshwari Devi vs Nirmala Devi (2011) 8 SCC 249 and justified the imposition of heavy cost on the ground that plaintiff had misused the process of the court by filing a false case and unnecessarily harassed the defendant without any reasons. In this cited case, High Court had imposed costs of Rs. 70,000/- and Supreme Court imposed further costs of Rs. 2 lakhs besides holding that imposition of heavy costs would go a long way in controlling the tendency of introducing the false pleadings and forged and fabricated documents by the litigants. After going through this cited case, I am of the view that High Court and Supreme Court imposed heavy costs under their constitutional and inherent powers.
66In case Ashok Kumar Mittal vs. Ram Kumar Gupta (2009) 2 SCC 656 Supreme Court though upheld order of imposition of heavy costs of Rs. 1 lakh passed by High Court upon both the parties to the suit but also held that section 35 and 35A CPC do not affect any way the wide discretion vested in High Court in exercise of its inherent powers to award costs in the interest of justice in appropriate civil cases. The more sound view however is that though award of costs is the discretion of the court, it is subject to such conditions and limitation as may be prescribed and subject to provisions of any law for the time being in force and where the issue is governed and regulated by section 35 and 35A of the Code, there is no question of exercising inherent powers contrary to the specific provisions of the Code. Supreme Court in this case also held that imposition of heavy costs in PIL or writ petitions may be justified but not in civil litigations wherein section 35 and 35A CPC are applicable. In the present matter, Supreme Court keeping in view certain circumstances i.e. no injustice had been committed, costs was already deposited, heavy cost imposed instead of taking action for perjury etc. upheld the heavy costs imposed upon the both litigants of the civil suit as but it was also observed that imposition of such costs in civil matter by High Court was not strictly correct.
In such circumstances, I am of the opinion that imposition of compensatory costs of Rs. 50,000/- by ld. Trial Court was in excess to the powers given u/s 35A CPC, hence the compensatory costs is reduced from Rs. 50,000/- to Rs. 3,000/-. Except this modification, the judgment and decree of ld. Trial Court is required to be upheld. Appellant/plaintiff is granted 7 days time from today to pay the costs of Rs. 3,000/- as modified above failing which respondent/defendant can recover it through execution proceedings.
77Ld. Trial Court has not awarded any separate costs of the suit to the defendant in the decree. The Trial Court record indicates that the dishonest and frivolous suit was dragged for about two years by the plaintiff. Defendant must have suffered some harassment, mental agony and financial loss in order to contest the same. He attended on various dates personally in the court and must have given fees to his lawyer. He must have incurred some expenses in summoning the witness and lost some income from his job or occupation on the day when he attended the court. Defendant has not produced any proof even in this court, what is the amount of financial loss incurred to him due to payment of lawyer's fee, loss of income due to attending the court and due to taking of some steps in the ld. Trial Court including for summoning witness as well as other misc. expenses. He has also not filed any separate appeal or cross objection in respect of non grant of costs of the suit under section 35 CPC, so he is not entitled to any other costs except compensatory costs of Rs. 3,000/- as modified above. Defendant is at liberty to file separate suit for recovery of more damages if is advised and is maintainable.
There is no hesitation to say that plaintiff has filed this appeal without any grounds despite having knowledge that it is not likely to succeed in any circumstances but still he took a chance and thus again caused harassment to the defendant. Accordingly, plaintiff is also burdened to pay additional compensatory costs of Rs. 3,000/- in this appeal also to the defendant. In view of above discussions, appeal is dismissed and judgment and decree of the ld. Trial Court is upheld except modifying the quantum of costs. Copy of the judgment be sent to ld. Trial Court along with the record. Decree be prepared and file be consigned to record room.
(Ashwani Kumar Sarpal)
Dt. 04-07-2015 Addl. District Judge- 1