Delhi District Court
Gulshan Bir Kaur vs Pinki Chopra on 9 March, 2015
IN THE COURT OF SH. VINOD KUMAR MEENA,
CIVIL JUDGE13(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 592/14
Unique ID no. 02401C1256472006
In the matter of :
Gulshan Bir Kaur
(Since Deceased)
Through her Legal Heirs.
(i) Shri J. Inder Singh Chhatwal
S/O Late Sh. Devender Singh,
R/O B191, Greater Kailash PartI, New Delhi.
(ii) Sh. Harmeet Singh Chhatwal,
S/o Late Sh. Devender Singh
R/O B191, Greater Kailash PartI,
New Delhi. ........Plaintiff
Versus
1. Pinki Chopra,
W/o Sh. Brij Chopra,
R/O B191, Greater Kailash PartI,
New Delhi. ......Defendant
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:1/34
SUIT FOR EJECTMENT AND MESNE PROFITS & RECOVERY
Date of institution : 30.05.1996
Reserver for Judgment : 03.03.2015
Date of Judgment : 09.03.2015
JUDGMENT
1. Vide this order, I shall dispose of the present suit for Ejectment and Mesne Profits & Recovery filed by the plaintiff against the defendant.
2. The relevant facts which are inevitable for deciding the present suit are that the plaintiff is owner /landlord in respect of the premises bearing No. B191, Greater KailashI, New Delhi. The plaintiff has let out portion of the first floor of premises B191, Greater KailashI,New Delhi (herein after referred as suit property) to the defendant comprising of two bed rooms, drawing, dining, two attached toilets, small balcony on the rearside of the first floor on a monthly rent of Rs.3200/ p.m. excluding water and electricity charges. The tenancy was according to the English Calender month. It is averred in the plaint that in terms of provisions as enumerated under Section 6A of Delhi Rent Control Act, the plaintiff served a notice dt. 19.12.1991 calling upon the defendant to increase the rent by 10%. This notice was duly CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:2/34 served on defendant and the reply of the same was also received from the defendant by their lawyer. It is further averred in the plaint that the defendant sent a cheque for Rs. 9,600/ for the rent of three months @ Rs. 3200/, however, the rent which was sent by the defendant alongwith the reply through her advocate was not according to the revised or increased rent @ of Rs.3,520/ per month. It is also averred in the plaint that the defendant is liable to pay the sum of Rs.320/ pm as difference towards the increased rent w.e.f. 01.01.1992. Thus the defendant has to pay differences in rent w.e.f.
01.01.1992. The defendant has also not paid the arrears of rent w.e.f.
01.01.1993. It is also averred in the plaint that the defendant had sent the rent at old rent rate i.e. Rs.3,200/ per month and not at revised rate i.e. Rs.3,520/ per month, which has become due in view of the amendment in DRC Act and as provided Under Section 6 A of DRC Act. The Plaintiff had sent a notice of termination of tenancy to the defendant vide notice dt.
06.04.1992 and the same was returned with the remark that the defendant was not found at the given address. Plaintiff thereafter sent another notice terminating tenancy of defendant dt. 02.09.1994 and the same was also returned with the remark that the defendant was not found at the given address. It is averred that defendant has been avoiding the receipt of the CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:3/34 notice with an ulterior motives. It is also stated that defendant has not vacated the premises despite termination and as such the defendant is liable to pay mesne profits @ Rs.30,000/ per month towards the use and occupation charges of the premises as the defendant is retaining the premises illegally and unauthorizedly after the termination of the tenancy. It is prayed through the present suit that the (i) A decree for Ejectment be passed against the defendant in respect of First Floor of premises bearing No. B191, Greater KailashI, New Delhi as shown in site plan attached in red colour in favour of the plaintiff and against the defendant, (ii) A Decree for sum of Rs.1,09,680/ be passed in favour fo the plaintiff and against the defendant towards arrear of rent and water charges & (iii)A decree for mesne profits @ Rs.30,000/ p.m. be passed from the date of filing of the suit till the vacating of the suit premises by the defendant.
AVERMENTS OF THE DEFENDANT.
3. The defendant was served with summons and she filed her written statement. The defendant contented that the suit of the plaintiff is neither maintainable on facts nor on law and same is liable to be dismissed CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:4/34 outrightly. It is further contented that the plaintiff has not come to the Court with clean hands. It is also submitted on behalf of defendant that the tenancy of the defendant admittedly has not been terminated as no notice has been served on her or tendered to her and the tenancy is still subsists between the parties. It is further contented by the defendant that the legal notice has been withdrawn and waived for the reason that plaintiff has accepted and received rent from the defendant. It is also submitted that suit of plaintiff is not properly valued for the purpose of Court Fee and Jurisdiction. Defendant has also taken the preliminary objection that plaintiff has sought eviction only from a part of the tenanted premises which comprise entire first floor, including the balconies, etc. and terrace thereon. On merits, the defendant contented that the contents of the suit in para 2 are not correct. It is further contented by the defendant that the tenanted premises have not been truly and correctly mentioned in the suit. It is also contented that the plaintiff in order to set up a false and wrong claim against the defendant has concocted the story of notices which in fact were never received.
4. The plaintiff has filed replication to the written statements of the defendants wherein the content of the plaint reiterated and reaffirmed and CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:5/34 allegation made in the written statement are categorically denied.
5. From the pleadings of the parties, following issues were framed vide order dated 15.09.1998 :
(i) Whether the suit qua claim of arrears is barred by time?
OPD.
(ii) Whether the rent is less than Rs.3,500/ pm. Or not if so its effect ? OPD.
(iii) Whether the plaintiff has paid advolarem court fees or not?
OPP.
(iv) Whether the suit is for partial eviction of the premises?
OPD.
(v) Whether the tenancy of the defendant has been duly terminated by a duly served valid notice?OPP.
(vi) Whether the notice of termination has been waived? OPD.
(vii) Whether the plaintiff is entitled for damages if yes at what rate and for what period? OPP.
(viii) Whether the plaintiff is entitled for decree of possession or not? OPP.
(ix) Whether the plaintiff is entitled for decree in terms of prayer (II) (i). OPP.
(x) Whether the plaintiff is entitled for decree in terms of prayer? OPP.
(xi) Relief.
6. Though, the evidence of the defendant was closed yet subsequently she amended her Written Statement with leave of Court and on the basis of the same the following additional issues were framed on 28.08.2000: CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:6/34
(i) Whether the advance money of Rs.50,000/ paid by the defendant has already been adjusted towards the arrears of rent as alleged by plaintiff ? OPP.
(ii) Whether tenancy of the defendant stands terminated?
OPD.
(iii) Relief.
7. The plaintiff adduced the plaintiff's evidence and appeared as PW1. In support of her case, the plaintiff examined herself as PW1 and has reiterated on oath the contents of the plaint and relied upon certain documents which are as under:
i) Ex. PW1/1 is the letter dt. 18.05.1992
ii) Ex. PW1/2 is the site plan.
iii) Ex. PW1/3 is reply to the notice dt. 19.12.1991.
iv) Ex. PW1/4 is the postal receipt
v) Ex. PW1/5 is the envelope
vi) Ex. PW1/6 is the copy of notice
vii)Ex. PW1/7 is the envelope w.r.t to notice dt. 03.09.1994
viii)Ex. PW1/8 is the postal receipt
ix) Ex. PW1/9 is the copy of the notice dt. 03.09.1994.
PW1 also relied upon documents marked as Mark Mark 'A' is the notice dt. 19.12.1991 Mark 'B' is the postal receipt Mark 'C' is the reply to the notice dt. 19.12.1991.
Mark 'D' is the notice dt. 03.09.1999.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:7/34 Mark 'E' is the postal receipt. PW1 was examined in chief and cross examined in detail.
8. In her defence, the defendant has examined herself as DW1. DW1 deposed in consonance with the contents of her WS.
9. The defendant also produced DW2 Sh. H.N. Kumra who also filed his affidavit, which is Ex.DW1/A and he relied on receipt which is marked as Mark 'A'. During the course of his cross examination it is deposed by the witness that he did not know how and when the rent was increased by the landlord and paid by the defendant to the plaintiff. He also express his unawareness about the security paid by the defendant to the plaintiff and whether the security amount was adjusted. He also could not confirm as to how the defendant sent the rent to the plaintiff .
10. I have heard the final argument on behalf of plaintiff and have gone through the written submissions which is filed by or on behalf of defendant and perused the records and documents and following are the issuewise findings: CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:8/34 Issue no. 1. Whether the suit qua claim of arrears is barred by time? OPD.
11. As far as issue no. 1 i.e. whether the suit qua claim of arrears is barred by time? OPD, is concerned, it was incumbent upon the defendant to prove that the suit qua claim of arrears is barred by time. To this, it is observed by the Court that defendant has not adduced any evidence to prove the fact that the suit qua claim of arrears is barred by time. It is observed by the Court that it is averred by the plaintiff in her examination in chief as PW1 dated 16.12.1998 that she has received rent @ Rs. 3200/ p.m upto October, 1993, admittedly the plaintiff has filed the present suit on 30.05.1996. The period of limitation for filing the suit is 3 years from the date on which the cause of action arises. So the suit for the recovery of the arrears of the rent is not time barred.
It is further observed by the Court that beside the arrears of rent, the plaintiff has also sought recovery of difference in arrears of rent w.e.f 01.01.1992 to 31.10.1993. To this, the Court is of the view that the difference in arrears of rent prior to the month of May, 1993 is time barred and accordingly, the plaintiff can claim recovery for difference of arrears of rent from the month of May, 1993 to 31.10.1993.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:9/34 In view of the abovementioned, it is held that the suit of the plaintiff is only barred qua the arrears for the difference of rent prior to the month of May, 1993 and for the rest of period, the suit is within limitation period.
In view of the abovementioned, issue no. 1 is partly decided in favour of the plaintiff with the observations that the plaintiff is entitled for recovery of arrears of rent /difference in rent from the period of May, 1993 till the filing of the suit.
Issue no. 2. Whether the rent is less than Rs.3,500/ pm. Or not if so its effect ? OPD.
12. As far as issue no. 2 i.e. whether the rent is less than Rs.3,500/ pm. Or not if so its effect ? OPD, is concerned, the Court deem it fit to mention here that the issue no. 2 was decided by my Ld. Predecessor as preliminary issue and the suit was disposed off on the basis of findings w.r.t the issue no. 2 vide order dated 13.08.2012. It is further pertinent to mention here that plaintiff filed an appeal against the order dated 13.08.2012 before the Ld. Appellate Court and the Ld. Appellate court set aside the impugned judgment/decree dated 13.08.2012 vide judgment/order dated 02.04.2013 and vide judgment/order dated 02.04.2013, the Ld. Appellate Court specifically observed and held that the rent of the suit promises exceeded Rs. 3500/ and accordingly held that the protection to the defendant/tenant under the Delhi Rent Control Act ceased to exist as the rent of the suit premises exceeded Rs. 3500/. The Court deem it fit to mention here that the relevant para of judgment passed by Ld. Appellate Court, the same are quoted here CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:10/34 as under: "16. In this regard, it has been held in RSA. 241/2005 titled as M/s Crack Detectives Pvt. Ltd. Vs. Sh. P S Malhotra that landlord has a statutory right under the Delhi Rent Control Act seeking the increase of rent and the liability to pay increased rent accrued only after 30 days of expiry of date from the notice.
17. Appellant gave a notice dated 19.12.1991 Ex.
PW1/2 in terms of Delhi Rent Control Act and pursuant to the said notice, increased the rent @ 10% from Rs.
3,200/ to Rs. 3,520/.
18. I am of the view that Ld. Trial Court also failed to appreciate that respondent had admitted in the reply to the notice Ex. PW1/2 that rent was Rs. 3,200/ per month. Merely because respondent continued to pay Rs. 3,200/ per month would not absolved him from the statutory liberty to pay enhanced rent under the DRC Act.
19. Section 6A of Delhi Rent Control Act, has been added by Delhi Rent Control amendment Act 1988 for the benefit of landlord and a discretion has been vested in the land lord to increase or not to increase the rent by 10% as the word "may be increased" have been used in the Section. But in case the landlord decided to exercise the option, the tenant has no right to object as the increase is not by agreement, it is a statutory right which has been given to the land lord with the option either to exercise it or not to exercise it. The right become exercisable only after one months notice is given as per Section 8 of Delhi Rent Control Act. Thus land lord is entitled to enhance agreed rent or standard rent by 10% every three years.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:11/34
20. In the present case, the respondent/tenant admitted that the rate of rent of the tenanted premises was Rs. 3,200/ per month in here reply to the notice dated 09.01.1992, as such the contentions of Ld. Counsel for respondent/defendant that premises was let out at the rate of Rs. 2,400/ per month stands falsified. The next contention of Ld. Counsel for respondent that Section 6A was not attracted as rent was increased manifolds by appellant prior to the notice dated 19.12.1991, is also without merits as appellant/land lord had the right to increase the rent after 3 years of the initial tenancy (i.e. 1987).
Moreover, the receipt of the notice dated 19.12.1991 Ex. PW1/2 was admitted by the respondent. Thus, I am the view that the provisions of Section 6A and 8 were complied with and after the service of the notice dated 19.12.1991, the protection of the respondent/tenant under the Delhi Rent Control Act, ceased to exist as the rent of the suit premises exceeded Rs.3,500/."(underline added) It is again pertinent to mention here that the defendant preferred an appeal against the order of Ld. Appellate Court dated 02.04.2013 before the Hon'ble High Court of Delhi and Hon'ble justice Sh. V. K. Shali dismissed the appeal vide order dated 12.11.2013. The relevant para of the same is quoted here as under: "2. I have gone through the judgments passed by the Ld. Civil Judge on 13.08.2012 as well as the impugned judgment dated 02..04.2013 passed by the Ld. ADJ and I am also not satisfied that any substantial question of law is involved in the matter. Accordingly, the appeal deserves to be dismissed in limine.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:12/34 However, before parting with the appeal, it may be mentioned briefly that the respondent had filed a suit for ejectment and mesne profit against the present appellant in respect of premises bearing no. B191, Greater Kailash I, New Delhi comprising of two bed rooms, drawing, dining, two attached toilets, small balcony on the rear side of the first floor which was originally let out on a monthly rent of Rs. 3,200/ per month apart from electricity and water charges. It was further alleged by the respondent that in the year 1998, she had on account of amendment of Section 6A of the Delhi Rent Control Act, 1958 sought increase of the rent by 10% and consequently the requisite statutory notices were issued and the rent on the date of filing of the suit was more than Rs. 3,500/ and thus the suit for ejectment was maintainable.
3. This was contested by the present appellant in the written statement and accordingly an issue was framed as to whether the jurisdiction of the civil court is barred by Section 50 of the Delhi Rent Control Act, 1958. The learned Trial Court decided the said issue in favour of the defendant that is the present appellant that it was barred under Order 7 Rule 11(d) CPC. This was the judgment passed on 13.08.2012.
4. The respondent feeling aggrieved with the same, preferred an appeal, RCA No. 04/2012, which was allowed and the matter was remanded back to the trial court to be decided afresh holding that the suit is maintainable as the rent of the premises was exceeding Rs. 3,500/ on account of the notice having been served on the present appellant. It is against this judgment that the appellant has filed the present regular second appeal.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:13/34
5. I have already observed that the matter does not involve any substantial question of law and accordingly, the appeal is dismissed."
It is pertinent to mention here that the defendant also moved two applications under Order 41 Rule 23 of CPC as well as application under Section 5 of Limitation Act. Both the applications were disposed off as dismissed by the Hon'ble High Court of Delhi through Hon'ble justice Sh. V. K. Shali vide order dated 03.01.2015. The relevant para of the same is quoted here as under: "2. I have heard the learned counsel for the appellant. The instant regular second appeal was dismissed on 12.11.2013 holding that no substantial question of law is involved. Moreover, the order which was passed by the first appellate court was only remanding the matter back to the trial court holding that the learned trial court has the jurisdiction to decide the suit for possession on the ground that the rent of the premises in question was more than Rs. 3,500/ per month...
8. I feel that this is only a dilatory tactics adopted by the appellant to postpone the disposal of the matter. This cannot be permitted to be done. There is no merit in either of the applications inasmuch as no sufficient cause for condonation of delay has been shown or urged in the application. Moreover, even if this aspect is ignored, the allowing of the application under Order 41 Rule 23 CPC would tantamount to allowing rehearing of the matter, which cannot be permitted to be done under the garb of the said application.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:14/34
9. Both these applications are totally misconceived and are accordingly dismissed. "
After going through the above mentioned observations made by the Ld. Appellate Court and by Hon'ble High Court of Delhi, the Court left with no doubt that rent of the suit premises is more than Rs. 3500/ p.m. Accordingly, in view of the abovementioned and in view of the observations made by Ld. Appellate Court and by Hon'ble High Court of Delhi, the issue no. 2 is decided against the defendant.
Issue no. 3. Whether the plaintiff has paid advolarem court fees or not? OPP.
13. As far as issue no. 3 i.e whether the plaintiff has paid advolarem court fees or not? OPP, is concerned, it was incumbent upon the plaintiff to prove that the plaintiff has paid advolrem Court fees. To this, it is observed by the Court that it is averred by the plaintiff in her pleadings in para no. 12 of the plaint that value of the suit for the purpose of Court fees and jurisdiction is fixed of Rs. 1,52,360/ being the annual rent of premises and on which the Court fees of Rs. 3955/ is paid. To this, it is observed by the Court that the contents of para no. 12 of the plaint have not been categorically denied by the defendant in her pleadings in written statement and the defendant had evasively averred in her written statement that the suit has not been properly adequately valued and proper Court fees on the same has not been paid by the plaintiff.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:15/34 To decide the issue no. 3, the Court deem it fit to discuss here the relevant legal proposition as mentioned in the Court Fees Act under Section 7 of the Court Fees Act. The relevant legal provision to adjudicate upon the present issue has been covered under Section 7(XI) (cc) of the Court Fees Act 1870.
"7. Computation of fees payable in certain suits: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: ...Between landlord and tenant: (xi) In the following suits between landlord and tenant...
(a), (b), (c)...
...(cc) for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy...
According to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint."
After going through the provision as enumerated under Section 7 (XI) (cc) of Court Fees Act, 1870, the Court left with no doubt that in suit between the landlord and tenant for the recovery of immovable property from a tenant the Court fees shall be computed on the basis of amount of rent of the immovable property to which the suit refers. In view of the points as discussed under the heading of issue no. 2, the rent of the suit property is Rs. 3520/ pm and the annual rent comes as Rs. 42240/ and the Court fees has been accordingly filed and the Court left with no doubt that the suit has been CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:16/34 properly valued and court fees properly paid. It is further pertinent to mention here that the suit has also been filed for recovery of arrears of rent and on the same also the proper Court fees has been filed/paid. Accordingly, the issue no. 3 decided in favour of the plaintiff.
Issue No:4 : Whether the suit is for partial eviction of the premises? OPD.
14. As far as issue no. 4, is concerned, it was incumbent upon the defendant to prove that the suit is for partial eviction of the suit property. To this, it is observed by the court that it is averred by the plaintiff in her pleadings in para2 that the plaintiff let out the portion of the 1 st floor of the suit premises bearing no. B191, G. K. I, New Delhi to the defendant comprising of two bed rooms, drawing room, dining, two attached toilets of the 1st floor. It is further averred by the plaintiff in her pleadings in para2 that portions of the premises which was let out to the defendant has been shown in the site plan in red colour. In reply to th pleadings, it was averred by the defendant in her written statement that tenanted premises has not been correctly mentioned by the plaintiff in her plaint and has further averred that the tenanted premises includes terrace portion also. It is further averred by the defendant in her pleadings that she will file the correct site plan; however, it is admitted fact that no site plan has been filed by or on behalf of the defendant through out the trial of the present suit. It was averred by the defendant in her crossexamination as DW1 that the site plan which has been exhibited as Ex. PW1/D is correct. The relevant portion is quoted here as under for the sake of clarity:
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:17/34 "It is correct that except the store, entire site plan in Ex. PW1/D is correct.
It is further observed by the court that no evidence has been adduced by or on behalf of defendant to prove or substantiate issue no.4.
In view of the above mentioned and keeping in mind that fact that the site plan exhibited as Ex. PW1/D which has been filed by the plaintiff has been admitted by the defendant in her crossexamination and she has not filed any site plan to substantiate her claim and also keeping in mind the fact that no evidence to prove or substantiate issue no.4 has been adduced by the defendant, accordingly, the issue no.4 is decided against the defendant.
Issue no.5: Whether the tenancy of the defendant has been duly terminated by a duly served valid notice?OPP.
15. As far as issue no 5, is concerned, it was incumbent upon the plaintiff to prove that the tenancy of the defendant had been duly terminated through valid service of notice. To this, it is submitted by the Ld. counsel for the plaintiff that tenancy was on month to month basis and the plaintiff has sent the notice of the termination thereby terminating the tenancy of the defendant vide notice dated 06.04.1992, however, same was received back with the report that the defendant was not found at the given address despite repeated visits by the postal official. It is further averred by the Ld. counsel for the plaintiff that again notice of termination of tenancy of the defendant dated CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:18/34 03.09.1994 was issued, however, same was also received with the report that the defendant was not found at the given address despite repeated visits by the postal official. It is further submitted by the Ld. counsel for the plaintiff that the defendant was deliberately avoiding the service of the notices for termination of tenancy with ulterior motives and accordingly, the present suit has been filed for the possession and recovery of arrears of rent and mesne profits. It is further averred by the ld. counsel for the plaintiff that defendant was deliberately avoiding the service of the summons which is reflected from the documents which have been marked as Mark 'D' & 'F'. It is further submitted by the ld. counsel for the plaintiff that though notice for terminating the tenancy of the defendant dated06.04.1992 and 03.09.1994 has to be deemed as proper service in accordance with section 27 of general Clauses Act 1897, yet, even if notice dated 06.04.1992 and 03.09.1994 has not considered as proper service, the service of the summons in the present suit has to be considered as notice for terminating the tenancy in terms of judgment Sh. Radha Krishan Temple Trust Maithan, Agra vs M/s. Hindco Rotatron Pvt. Ltd. & Ors. FRA no./ 40/2010 dt. 20.12.2011.
It is pertinent to mention here that the defendant has not adduced any oral arguments in the present suit and has only filed written submissions. Perusal of the written submissions, it is observed by the court that in para5 of the written submissions, it is averred by the defendant that judgment titled as Radha Krishna (supra) is not applicable to the present suit as in the said judgment , the notice of the termination of the tenancy was served upon the defendant during the trial of the suit, whereas in the present suit, no notice CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:19/34 has been served during trial.
After hearing the submissions of Ld. counsel for the plaintiff and after going though written submissions of defendant and after going through the evidence adduced by both the parties and the documents annexed in the present suit, it is observed by the court that case of the plaintiff is that he has served initially one notice for termination of the tenancy of the defendant dated 06.04.1992, however, same received back unexecuted and accordingly, the plaintiff issued second notice dated 03.09.1994 for termination of the tenancy of the defendant, however same was also received back unserved. It is submissions of the plaintiff that defendant has deliberately evaded the service of the notices and annexed the postal receipts marked as Mark 'D' and 'F'. Perusal of the postal receipts marked as Mark 'D' which is w.r.t legal notice dated 06.04.1992, it is observed by the court that postal officials have visited the premises atleast 6 times, however, the defendant was not found at the given address. Further perusal of the postal receipt which is the registered A/D marked as Mark 'F' which is w.r.t legal notice dated 03.09.1994, it is observed by the court that postal officials have visited the premises of the defendant atleast two times and notice received back unserved with the report/endorsement that the address was out of station. From the bare perusal of the postal receipts which have been marked as Mark 'D' and 'F', it is clear that the defendant tried to evade the service of the legal notice for the termination of the tenancy. The court deem it fit to mention here the provisions as enumerated under Section 27 of the General Clauses Act 1897 provides meaning of service by post. Section 27 of theh CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:20/34 General Clauses Act 1897 reads as under: " Where any (central Act) of Regulations made after the commencement of this Act authorises or requires any document to be served by post, whether the expressions"
serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post"
The court also deem it fit to mention here that observations made by the Hon'ble Supreme Court in the case of Jagdish Singh vs Nathhu Singh, AIR 1992 SC 1604 where in it was observed by the Hon'ble Supreme Court that where as notice is sent by landlord by registered post and the same is returned by the tenant with an endorsement of refusal, it will be presumed that the notice has been served.
It is the case of the plaintiff that the tenancy of defendant with respect to the suit property was terminated initially vide legal notice dated 06.04.1992 (Ex. PW1/6). The postal receipts in respect of legal notice are mark 'F'' (Ex. PW1/5). Since, the said legal notice was returned back with the remarks of the postman "not found, despite repeated visits and specific dates ( 6 in numbers) has been mentioned on the registered cover. Thereafter, another legal notice dated 03.09.1994 was issued thereby terminating the tenancy of defendant and demanding the rate at the enhanced rate of rent. The said CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:21/34 notice is Ex. PW1/9 (mark 'D') and postal receipts in this regard are Ex. PW1/8 (mark 'D'). The registered AD in respect of notice was received back with the report that addressee was not found as out of station. Although defendants have denied all these legal notices and postal receipts at the time of admission denial of documents. However, no evidence has been led by the defendant to disprove the legal notices or postal receipts placed on record by the plaintiff. As per Section 27 of General Clauses Act, as discussed above, there is a presumption that letters sent in ordinary course of business are duly received unless contrary to the same is proved. In the instant case, the postal receipts of the legal notices are on record. The defendant has not disputed the address on which these legal notices have been sent. Accordingly, the legal notices are presumed to have duly served upon the defendants. Thus, the tenancy of defendant has been duly terminated. Before parting with the order on issue no. 5, the court deem it fit to deal here the contention raised by the defendant in her written submissions. In her written submissions, it is averred by the defendant that the judgment Radha Krishana Maithan(supra) will not be applicable as in the present suit notice for termination has not been issued during the trial, to this, Court deem it fit to mention here that the plea raised by the defendant is nothing but misconceived. It is trite that even if the notice terminating tenancy is not served upon the tenant, the tenancy would stands terminated on filing of the suit for ejectment and possession against the tenant. In the present suit, as it has been discussed above, the notice for terminating of the tenancy is deemed to be served.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:22/34 In view of the abovementioned, the issue no. 5 is decided in favour of the plaintiff.
Issue No. 6. Whether the notice of termination has been waived? OPD.
16. As far as issue no. 6 i.e. whether the notice of termination has been waived? OPD, is concerned, it was incumbent upon the defendant to prove that the notice of termination of tenancy has been waived off. To this, it is pertinent to mention here that the defendant has not adduced any oral argument and filed the written submissions. Perusal of the same, it is observed by the court that the defendant has refuted that the rate of rent was increased from Rs. 3200/ to Rs. 3520/ and also submitted that the defendant deposited the rent of Rs. 3200/ p.m and the same was duly received by plaintiff without any objection and accordingly, as the plaintiff received the rent @ Rs. 3200/ p.m, the plaintiff has waived off the notice of termination of tenancy or notice of the enhancement of rent. To this, it is submitted by Ld. counsel for plaintiff that the plea that the notice for termination of tenancy has been waived is raised without any merits and just to linger on the matter. It is further submitted by Ld. counsel for plaintiff that the Ld. Appellate Court and thereafter, the Hon'ble High Court of Delhi has categorically observed and held that the rent has been increased from Rs. 3200/ to Rs. 3520/ and the plea that the defendant was receiving the rent @ Rs. 3200/ will not absolve the defendant from paying the rent at the enhanced rate of rent of Rs. 3520/ p.m. After hearing the submission of both the parties and after going CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:23/34 through the evidence adduced by both the parties and after going through the document annexed with the judicial file, it is observed by the Court that there is not even a single evidence to the effect that notice for termination of tenancy has been waived off. It is further pertinent to mention here that the plea of the defendant to the effect that rent has not been increased from Rs. 3200/ to Rs. 3520 / has already been discussed and held by the Ld. Appellate court vide judgment dated 02.04.2013. It is further pertinent to mention here that in para no. 18 of the order passed by the Ld. Appellate Court, Ld. Appellate Court has categorically dealt with the present point; para no. 18 has already been quoted under the heading of issue no. 2. It is again pertinent to mention here that the increase of rate of rent from Rs. 3200/ to Rs. 3520/ has already been dealt with by the judgment of Ld. Appellate court dated 02.04.2013. The court is not able to understand the reason behind the plea of the defendant that as defendant was receiving the rent @ Rs. 3200/ p.m she has waived her right to receive the rent at enhanced rate or she has waived the notice of termination.
In view of the above mentioned, the issue no. 6 is decided against the defendant as same is without merit.
Issue no.7. Whether the plaintiff is entitled for damages if yes at what rate and for what period? OPP.
17. As far as issue no. 7 i.e. whether the plaintiff is entitled for damages if yes at what rate and for what period? OPP, is concerned, it was incumbent upon the plaintiff to prove that the plaintiff is entitled for damages. it is CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:24/34 pertinent to mention here that the plaintiff has not sought any damages through the present suit and there are no evidence w.r.t the damages. It is also pertinent to mention here that the plaintiff has only sought the recovery of mesne profits in addition to the recovery of arrears of rent and the prayer w.r.t the mesne profits will be decided under the issue no. 10. Accordingly, in the absence of any evidence and in the absence of any specific plea, the issue no. 7 is decided against the plaintiff.
Issue no. 8. Whether the plaintiff is entitled for decree of possession or not? OPP.
18. As far as issue no. 8 i.e. whether the plaintiff is entitled for decree of possession or not? OPP, is concerned, it is pertinent to mention here that it is an admitted fact that the plaintiff is the owner of the suit property. It is also pertinent to mention here that suit property was given on rent to the plaintiff. It is also pertinent to mention here that rate of rent is Rs. 3520/ as decided in the heading under the issue no. 2. It is also pertinent to mention here that the suit has been filed for the eviction of the tenant from the suit property and the suit property has been properly described in the site plan as dealt with under the issue no. 4. It is also pertinent to mention here that tenancy of the defendant has been duly terminated as discussed under the heading of issue no. 5.
In view of the abovementioned and in view of discussion as held under the heading of issue no. 1 to 6, the present issue i.e. issue no. 8 is decided in favour of the plaintiff and accordingly, it is decided that the plaintiff is entitled for decree of possession and the defendant has to hand over the vacant the CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:25/34 peaceful possession of the suit premises which is the first floor of the premises bearing no. B191, Greater Kailash I, New Delhi comprising of two bed rooms, drawing, dining, two attached toilets, small balcony on the rear side of the first floor.
Issue no. 9. Whether the plaintiff is entitled for decree in terms of prayer (II) (i). OPP
19. As far as issue no. 9 i.e. whether the plaintiff is entitled for decree in terms of prayer (II) (i). OPP, is concerned, it was incumbent upon the plaintiff to prove that he is entitled for decree of sum of Rs. 1,09,680/. To this, it is submitted by Ld. Counsel for plaintiff that plaintiff is entitled for recovery of sum of Rs. 1,09,680/ which includes the difference in arrears of rent w.e.f. 01.11.1992 to 31.10.1993 which comes as Rs. 7040/ and arrears of rent @ Rs. 3520/ from 01.10.1993 till the date of filing of the present suit which come at Rs. 1,02,480/ accordingly, plaintiff is entitled for recovery of sum of Rs. 1,09,680/ as arrears of rent. It is again pertinent to mention here that the defendant has not adduced any oral argument and filed the written synopsis, however, in here written synopsis, she has not averred anything about the decree w.r.t the recovery of Rs. 1,09,680/ in the arrears of rent.
After hearing the submission of Ld. Counsel for plaintiff and after going through the written synopsis filed by the defendant and after going through the pleadings and evidence, it is observed by the Court that the present suit was filed on 30.05.1996. So, the plaintiff is entitled for difference of arrears of rent from 01.06.1993 to 31.10.1993 which comes out as Rs. 1600/ so CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:26/34 instead of a sum of Rs. 7040/ as difference in arrears of rent, the plaintiff is entitled for difference of arrears of rent from 01.06.1993 to 31.10.1993 which comes out as Rs. 1600/. As far as the arrears of rent @ Rs. 3520 is concerned, it is pertinent to mention here that it has been categorically held and decided under the heading of issue no. 2 that the plaintiff is entitled for rent @ Rs. 3520/. However, as far as the claim for arrears of rent @ Rs. 3520/ p.m. w.e.f 01.10.1993 till the filing of the present suit is concerned, the Court deem it fit to mention here that the plaintiff has categorically admittedly received the rent for the month of October, 1993, the Court is granting the arrears of rent @ Rs. 3520/ from 01.11.1993 till the filing of the suit which comes out as Rs. 1,09,120/. Accordingly, the plaintiff is entitled for total sum of Rs. 1,10,720/ which includes difference in arrears of rent w.e.f. 01.06.1993 to 31.10.1993 as Rs. 1600/ and arrears of rent @ Rs. 3520/ w.e.f 01.11.1993 till 31.05.1996 as Rs. 1,09,120/.
In view of the abovementioned, the issue no. 9 is decided in favour of the plaintiff. It is held that the plaintiff is entitled for sum of Rs. 1,10,120/.
Issue no:10 Whether the plaintiff is entitled for decree in terms of prayer? OPP.
20. As far as issue no.10, is concerned, it was incumbent upon the plaintiff to prove that he was entitled for mesne profits @ Rs. 30,000/ pm from the date of filing of the suit till the recovery of possession of suit premises. To this, it is pertinent to mention here that it is averred by the plaintiff in her pleadings in para8 of the plaint that the defendant has not vacated the CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:27/34 premises despite the termination of the tenancy and the defendant is liable to pay the mesne profits @ 30,000/ pm towards the water and occupant charges of the premises as the defendant has retained the premises illegally and unauthorisedly after the termination of the tenancy. It is pertinent to mention here that the defendant in her pleadings has only evasively denied the pleadings raised by the plaintiff and has not averred as to what is the actual rate of rent which is prevailing in the market. It is also pertinent to mention here that it is averred by the defendant in her pleadings that liability to pay the alleged mesne profits @ 30,000/ pm is upon the plaintiff and the defendant is giving no reply to that. So, it is clear from the pleadings that the plaintiff has sought recovery of mesne profits @ Rs. 30,000/ pm from the date of filing of the suit till the recovery of possession of suit property.
It is further pertinent to mention here that though the plaintiff has averred in her plaint that she is entitled for recovery of mesne profits @ Rs. 30,000/ pm and the same has been evasively denied, yet, the plaintiff has to prove that she is entitled to recover the mesne profits @ Rs. 30,000/ pm from the defendant. It is further pertinent to mention here that there are no specific evidence to prove the fact that plaintiff is entitled to mesne profits @ Rs. 30,000/ pm from the date of filing of the suit till recovery of possession of suit property. It is further pertinent to mention here that the plaintiff in her examinationinchief as PW1 has averred that prevailing market rent for the property like suit property is 12,000/ pm. CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:28/34 The relevant para is quoted here as under for the sake of clarity: " ...rent was Rs. 3200/ p.m I did not receive the rent at the enhance rate as claimed by me. The market rent of rent of the premises in the occupation of the tenant is Rs. 12000/ p.m...."
Plaintiff has not been crossexamined by the defendant w.r.t admitted prevailing market rate of rent @ Rs. 12,000/ pm. In view of the abovementioned and in view of the admission of the plaintiff and in view of the unchallenged fact w.r.t prevailing market rent @ Rs. 12,000/ pm, mesne profits are being granted in favour of the plaintiff @ Rs. 12,000/ pm from the date of filing of the present suit till the recovery of the possession of the suit premises.
It is again pertinent to mention here that the mesne profit @ Rs. 30,000/ pm as sought by the plaintiff has not been proved and it is admitted fact on the part of the plaintiff that prevailing market rate of rent is @ Rs. 12,000/ p m for the properties which are similar to the suit property and same remains unchallenged, accordingly, mesne profits are granted @ RS. 12,000/0 pm instead of @ Rs. 30,000/ pm from the date of filing of the suit till the recovery of suit property.
In view of the abovementioned, issue no.10 is decided in favour of the plaintiff and it is held that the plaintiff is entitled for mesne profits @ Rs. 12,000/ from the filing of the present suit till the recovery of possession of the suit property.
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:29/34
21. As far as additional, issue no. 2 which was framed vide order dt. 28.08.2000, is concerned, it is pertinent to mention here that additional issue no.2 is nothing but repetition of original issue no.5. It is pertinent to mention here that issue no.5 has already been decided in favour of the plaintiff, accordingly, additional issue no.2 which was framed vide order dt. 28.08.2000, is also decided in favour of the plaintiff in terms of the discussion as mentioned in the original issue no.5.
22. As far as additional issue no.1 which was framed on 28.08.2000, is concerned, it was incumbent upon the plaintiff to prove that the advance of Rs. 50,000/ paid by the plaintiff has already been adjusted towards the arrears of the rent. To this, it is pertinent to mention here that the plaintiff as PW1 has admitted in her crossexamination dt. 20.02.2001 that the sum of Rs. 50,000/ was given to her and the sum of Rs 50,000/ was paid on account of arrears of rent. Thereafter, except certain suggestion, the defendant has not adduced any evidence to substantiate the fact that the plaintiff has not adjusted the sum of Rs. 50,000/ towards the arrears of the rent. It is further observed by the court that it was averred by the defendant in her examinationinchief dated 29.03.2000 that the rent was paid by the defendant by cheque or by draft and some times she used to pay the rent in cash but after dispute she has always paid the rent by way of cheque. Relevant para is quoted here as under for the sake of clarity :
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:30/34 "...Sometimes rent was paid by cheque or draft and sometimes it used to be paid in cash but after the dispute I have always paid the rent by means of cheque. In 1992 a sum of Rs.
50,000/ was paid by me as advance to the plaintiff which was to be adjusted against the rent but she never adjusted that amount..."
It is also observed by the court that the defendant has not mentioned about the fact that a sum of Rs. 50,000/ as an advance was paid towards the rent and that the same has not been adjusted by the plaintiff, in her reply to the notices or in her original written statement and same was duly admitted by the defendant in her crossexamination. The relevant para is quoted here as under for the sake of clarity;
"...It is correct that in the notice I did not mention the advance payment of Rs. 50,000/..."
"... In any of the notices and written statement, there is no mention of the advance of Rs.
50000/ paid by me because I just forget it that I paid the advance.."
It is also observed by the court that it is averred by the defendant in his crossexamination that she paid arrears of rent to the tune of Rs. 41,600/ on the directions of the court. The relevant para is quoted here as under for the sake of clarity:
"... It is correct that I paid the arrears of Rs. 41,600/ as arrears of rent on the direction of the court..."
CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:31/34 After going through above quoted averments of the defendant, the Court found it very strange that the defendant has not mentioned the fact of making advance payment of Rs. 50,000/ to the plaintiff and the fact that the same has not been adjusted towards rent by the plaintiff in her written statement or in her reply to the notices. It is also pertinent to mention here that the defendant has made a payment of Rs. 41,600/ as arrears of rent on directions of the court and till that time also the defendant has not raised plea that she has already a payment of Rs. 50,000/ which has not been adjusted by the plaintiff. The court found the plea of the defendant that she forgot to mention about the same, as very strange as the sum of Rs. 50,000/ is a substantial sum. It is also pertinent to mention here that the plea was added after moving an application under Order 6 Rule 17 of CPC only at the time when the evidence on the part of both the parties was closed. The court also deem it fit to mention here that it is admitted on the part of the defendant that she made payment of the rent through cheque after controversy, however, she has not produced any document or any evidence to substantiate that the defendant has made payment after handing over the cheque of Rs. 50,000/ towards the rent.
From the abovementioned discussion, it is clear that the plea that the defendant gave an advance payment of Rs. 50,000/ and same has not been adjusted by the plaintiff towards the arrears of rent is nothing but a baseless plea and from the abovementioned discussion, it is clear that the sum of Rs. 50,000/ which was made by the defendant to the plaintiff has already been adjusted towards the arrears of rent. Accordingly, additional issue no. 1 is CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:32/34 decided in favour of the plaintiff and against the defendant.
23. Before parting with the present order, the Court deem it fit to mention here that the defendant in her written submissions has averred certain argument/submissions which are beyond pleadings and evidence. It is pertinent to mention here that submissions as mentioned in para 17 of written submissions are not part of the pleadings or evidence and has already been dealt with by the Court while disposing of one application under Order 1 Rule 10 of CPC vide order dated 05.05.2011. It is further pertinent to mention here that the plea raised by the defendant from para no. 18 onwards w.r.t effect of notice of increase has already been dealt with by the Ld. Appellate Court vide order dated 02.04.2013 and by Hon'ble High Court of Delhi vide order dated 12.11.2013 and 03.01.2015 and the relevant para of the orders has already been quoted under the heading of issue no. 2.
24. In view of reasons and findings given above, the suit of the plaintiff is partly decreed and following reliefs are granted in favour of the plaintiff and against the defendant.
(i).A decree of ejectment against the defendant in respect of the suit premises i.e First Floor of B191, Greater KailashI, New Delhi is passed, thereby directing the defendant to hand over the vacant and peaceful possession of the suit premises i.e. first floor of the property bearing B191, Greater KailashI, New Delhi as shown in site plan Ex. PW1/D to the plaintiff within a period of four weeks from today failing which it will be opened to the CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:33/34 plaintiff to have decree executed in accordance with law.
(ii). A decree for recovery of arrears of rent to the effect that the plaintiff is entitled for total sum of Rs. 1,10,720/ (which includes difference in arrears of rent w.e.f. 01.06.1993 to 31.10.1993 as Rs. 1600/ and arrears of rent @ Rs. 3520/ w.e.f 01.11.1993 till 31.05.1996) along with pendentelite and future interest @ 6% p.a. till the recovery of the possession of the suit premises.
(iii).A decree for mense profits @ Rs. 12000/ p.m. from the date of filing of the present suit till the handing over the possession is also awarded in favour of the plaintiff and against the defendant.
(iv).Costs of the suit.
25. The decree of pendentelite and future mesne profits shall not be executable till the filing of the court fee on the same.
26 Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open Court on 09.03.2015 (Vinod Kumar Meena) (Total pages 1 to 34) CJ13 (Central)/09.03.2015 CS No. 592/14 Gulshan Bir Kaur vs Pinki Chopra Page no:34/34