Delhi District Court
Smt. Rosyz Vegas vs Sh.Dharam Deo Ojha on 28 March, 2011
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 1087/2009
Unique ID No. 02401C0873082006
Smt. Rosyz Vegas
W/o Sh.Victor Vegas,
R/o S-77, Vasant Enclave,
2nd Floor, Vasant Vihar,
New Delhi-110057
...... Plaintiff
Versus
Sh.Dharam Deo Ojha
S/o Late Sh.Sukh Dev Ojha
Flat no.3, L.I.G. Flats,
Pocket-13, Ground Floor,
Phase-I, Dwarka, Mangalapuri,
New Delhi-110075
...... Defendant
Date of institution of suit : 22.09.2006
Date on which reserved for judgment : 26.02.2011
Date of Judgment : 28.03.2011
JUDGMENT:
1. This is a suit for recovery of possession, arrears of rent, user charges and damages.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as under:
2.1 The Plaintiff is the owner of DDA L.I.G. Flat bearing no.3 on the ground floor, Pocket-13, Phase-I, Dwarka, Mangalapuri, New Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 1 of 10 Delhi-110045. She lent the said flat to the Defendant vide rent agreement dated 27.7.2005 @ Rs.2,900 per month for 11 months ending on 30.6.2006.
2.2 The Plaintiff was working in Canadian High Commission, Chanakya Puri, New Delhi and was residing in a house provided to her by the Canadian High Commission. However, the Commission decided to discontinue the services of the Plaintiff. Hence, as the Plaintiff required a house to reside, she asked the Defendant to vacate the house by 30.6.2006 i.e. till the date of expiry of the rent agreement. 2.3 However, the Defendant did not do so and complained in the police on 17.6.2006. The Defendant had also not paid the rent for the last three months. Before the police, the parties arrived at a compromise and the Defendant agreed to vacate the house by 30.6.2006. He also promised to pay 1 month rent and remaining electricity charges of Rs.3,460/-. 2.4 However, still the Defendant did not vacate the house and sued the Plaintiff seeking permanent injunction that the Plaintiff be restrained from dispossessing him without due process of law. This suit was again compromised after the Plaintiff gave an undertaking to this effect.
2.5 Thereafter, the Plaintiff served upon the Defendant a notice dated 29.7.2006 u/s 106 of Transfer of Property Act. This notice was replied by letter dated 10.8.2006 but still the Defendant failed to vacate the suit property. Hence, the Plaintiff filed the present suit for recovery of possession, damages and rent.
3. The summons was served upon the Defendant, who filed his reply. The Defendant has admitted that the Plaintiff is her landlady but has denied the rent agreement vide which the tenancy came to an end on Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 2 of 10 30.6.2006. The tenancy was for more than 3 years. Further, as the rent is Rs.2,900/-, the jurisdiction of this court is barred by virtue of the Delhi Rent Control Act (hereinafter referred to as the DRC Act) and provisions of section 106, Transfer of Property Act (hereinafter referred to as the TP Act) do not apply. The notice dated 29.7.2006 is not denied but it is submitted that this notice is not as per the provisions of section 106, TP Act. Hence, it is prayed that the suit of the Plaintiff may be dismissed.
4. Replication was filed by the Plaintiff where the Plaintiff reiterated her averments and denied those of Defendant. On the basis of the pleadings of the parties, the following issues were framed vide order dated 16.01.2007:
1. Whether the suit is barred u/s 50 of DRC Act?OPD.
2. Whether the suit is properly valued for the purposes of court fees?OPD.
3. Whether the Plaintiff is entitled to decree of possession as prayed for?OPP.
4. Whether the Plaintiff is entitled to decree of damages as prayed for?OPP.
5. Relief.
5. Then the matter was fixed for Plaintiff's evidence. The Plaintiff got examined herself as PW1 and exhibited the following documents:
Ex.PW1/1 Copy of the agreement dated 27.7.2005 Ex.PW1/2 Copy of the certificate issued to the Plaintiff Ex.PW1/3 Copy of the police complaint dated 17.6.2006 Ex.PW1/4 Copy of the lease agreement dated 03.7.2006 Ex.PW1/5 Copy of the notice dated 29.7.2006 Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 3 of 10 Ex.PW1/6 Copy of the reply written by the Defendant Ex.PW1/7 Certified copy of the vacation suit no.78 of 2006 Ex.PW1/8 Copy of the completion certificate The Plaintiff had also filed the affidavit of Sh.Babu Lal Gudwal. However, she later on dropped this witness vide statement dated 18.8.2010.
6. Then the matter was fixed for Defendant's evidence. The Defendant got examined himself as DW1 and exhibited the following documents:
Ex.DW1/1 Order dated 07.7.2006 in suit no1233/06
7. After the closure of the Defendant's evidence, the matter was fixed for final arguments. I have heard the arguments of both the parties and my issue wise findings are as follows:
Issue No.2 Whether the suit is properly valued for the purposes of court fees? OPD.
8. Onus to prove this issue was upon the Defendant.
9. The Defendant has contended that the Plaintiff has not valued the suit properly for the purposes of court fees. However, the Defendant did not lead any evidence to prove this fact. It is settled principle of law Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 4 of 10 that the valuation of the suit as done by the Plaintiff is taken to be correct unless proved otherwise. As the Defendants failed to discharge this onus, this issue is also decided in favour of the Plaintiff.
Issue no.1,3 & 4 Whether the suit is barred u/s 50 of DRC Act?OPD.
Whether the Plaintiff is entitled to decree of possession as prayed for? OPP.
Whether the Plaintiff is entitled to decree of damages as prayed for? OPP.
10. Onus to prove issue no.1 was upon the Defendant and that of issues no.3 & 4 was upon Plaintiff. However, as the outcome of the issue no.1 shall have bearing on the other issues also, all the three issues are taken up together.
11. It is the case of the Plaintiff that she is the owner of the flat bearing no.3 on the ground floor, Pocket-13, Phase-I, Dwarka, Mangalapuri, New Delhi-110045, which she gave on rent to the Defendant dated 27.7.2005 vide the rent agreement Ex.PW1/1 for 11 months at the monthly rent of Rs.2,900/-. The said agreement was to end on 30.6.2006.
12. The said rent agreement was denied by the Defendant in his WS. However, in his evidence by way of affidavit, the Defendant admitted the execution of the document Ex.PW1/1. However, the Defendant submitted that when this agreement was entered into, the Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 5 of 10 agreement was blank and it was not witnessed by anyone. Further, he has alleged that a lease for a period of 3 years was entered into by the parties. However, the Defendant did not lead any evidence to prove the same. Hence, it is proved that the Plaintiff gave the premises on rent to the Defendant vide Ex.PW1/1. As per the said agreement, the Defendant was supposed to vacate the property by 30.6.2006.
13. Further, the Plaintiff has alleged that she was working in the Canadian High Commission and was residing in a residence allotted by the Commission. However, her services were terminated and thus, she needed the suit property in question for her residence. Accordingly, the Plaintiff informed the Defendant of her situation and the Defendant agreed to vacate the premises by 30.6.2006 but he did not do so and in fact approached the police on 17.6.2006 complaining that the Plaintiff was trying to dispossess him unauthorizedly. Before the police, the matter was compromised and the Defendant promised to vacate the house and also promised to pay 1 month rent and remaining electricity bills. However, the Defendant did not do so.
14. A suit was also filed regarding the same by the Defendant and it was settled after the Plaintiff gave a statement before the court that she would not dispossess the Defendant without due process of law. Hence, she gave a notice for vacation of the suit property to the Defendant dated 29.07.2006, which is Ex.PW1/5. This notice has been admitted by the Defendant. He also replied to the same vide letter dated 10.08.2006. However, the Defendant has contended that the notice Ex.PW1/5 is not a proper notice under the provisions of Section 106, TP Act.
Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 6 of 1015. Further, the Defendant has submitted that the agreed rate of rent was Rs.2,900/-. Hence, the Defendant has claimed that the said suit cannot be entertained by this court as the suit is barred by virtue of the provisions of the DRC Act. The relevant provisions of the DRC Act are as under.
"Section-3 Act not to apply to certain premises
(a) to any premises belonging to the Government
(b) to any tenancy or other like relationship created by a grant from the requisitioned, by the Government:
[Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, the notwithstanding any judgment, decree or order of any court or other authority, the provisions of this Act shall apply to such tenancy;]
(c) to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees; or
(d) to any premises constructed on or after the commencement of the Delhi Rent Control (Amendment) Act, 1988, for a period of ten years from the date of completion of such construction."
"Section-50(1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under by the Controller under this Act shall be granted by any civil court or other authority".
16. Section 3(c) of the Act clearly states that where the premises are given on rent for a monthly rent of more than Rs.3,500/-, there the Act shall not be applicable. Meaning thereby, that the DRC Act shall apply to cases where the monthly rent is less than Rs.3,500/-.
Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 7 of 1017. Further, Section 50(1) of the Act bars the jurisdiction of the civil courts in cases where eviction of a tenant is sought, in cases where the Act applies. Hence, where the Act applies, only the Rent Controller Act shall have the jurisdiction to try these matters such as matters for eviction of a tenant.
18. In the present suit, the admitted rate of rent is Rs.2,900/-, which is below Rs.3,500/-. Hence, the case is covered under Section 3(c) of the Act. However, the counsel for the Plaintiff has also relied upon Section 3(d) of the Act. This clause provides that the Act shall not apply to any premises, which are constructed after the commencement of the Act, for a period of 10 years from the date of the completion of the construction. This implies that if a premises have been constructed in say 1960, then the civil court can preside over such disputes till 1970. The counsel for the Plaintiff has argued that the present case falls under this clause. Hence, this court has the jurisdiction to try over the suit.
19. To prove the same, the Plaintiff has relied upon the Ex.PW1/8, which is the copy of the completion certificate issued by the DDA showing that the date of completion of the impugned property was 30.5.2000. The Plaintiff has also filed on record the RTI which was obtained by her from the DDA indicating the same. Hence, it is argued that as the suit has been filed in 2007 i.e. within 10 years from the date of completion of the construction of the suit property, the provisions of the DRC Act do not apply and this court has the jurisdiction to try over this matter.
20. The Defendant has taken the objection that in the said RTI, Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 8 of 10 the address of the property though similar to the address of the suit property, is not the same as it does not pertain to Phase-I. However, perusal of record show that in the documents filed by the Defendant himself, in some places he has mentioned Phase-I while in other places, he has not described the address of the property as being in Phase-I. For example, in his evidence by way of affidavit, Phase-I is not mentioned in the title paragraph whereas it is mentioned in para-2. Hence, this objection is not sustainable.
21. However, the Plaintiff has failed to substantially prove Ex.PW1/8. No officer from the concerned department was summoned by the Plaintiff to verify the veracity of this document. Hence, this document cannot be relied upon. Moreover, the RTI has not been proved at all by the Plaintiff. Hence, the Plaintiff has failed to prove that the case at hand falls under Section 3 (d), DRC Act. It is already proved that as the monthly rent is less than Rs.2,900/-, the matter falls under the purview of Section 3(c), DRC Act. Hence, in view of Section 3(c) and Section 50, DRC Act, this court does not have the jurisdiction to try over this matter.
22. As the matter squarely falls under the provisions of the DRC Act, the court need not go into the legality of the notice dated 29.07.2006, Ex.PW1/5, which the Plaintiff alleges to be the notice for vacation under Section 106, TP Act. In cases where the DRC Act applies, such a notice is inconsequential. Hence, in view of the above discussion, these issues are decided in favour of the Defendant. However, as it is admitted that the Defendant is tenant of the Plaintiff, he is liable to pay the rent as and when due to the Plaintiff.
Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 9 of 10Relief:
In view of the discussion above, the suit of the Plaintiff is dismissed but the Defendant shall pay the rent as and when due to the Plaintiff. Parties are left to bear their own costs.
Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 28.3.2011 CIVIL JUDGE-01 (NORTH)
DELHI
Certified that this judgment contains 10 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 10 of 10
Suit No.1087/09
28.3.2011
Present : None
Vide separate judgment of even date, the suit of Plaintiff is dismissed.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
[RUCHIKA SINGLA] CIVIL JUDGE-01 (NORTH) DELHI Rosys Vegas v. Dharam Deo Ojha Suit No.1087/09 Page 11 of 10