Delhi District Court
Mr. Ashwani Kumar Sharma vs Mr. Khem Singh Rana on 30 October, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
SUIT NO.158/11.
Unique ID no.02404C0100612011.
Mr. Ashwani Kumar Sharma
S/o Mr. B. N. Sharma
R/o H. No.424A, Ground Floor,
Sector30A, Chandigarh.
....Plaintiff
Versus
Mr. Khem Singh Rana
S/o Mr. Kishori Lal Rana
R/o Flat no.18, New Vindhyalchal
Coop. Group Housing Society,
Plot no.41, Sector13, Rohini,
Delhi110085.
....Defendant
Date of institution : 15.04.2011
Date on which reserved for judgment : 29.10.2013
Date of decision : 30.10.2013
Suit for Recovery of Damages
Judgment
1.This judgment shall decide the suit filed by the plaintiff.
2. Briefly stated, the facts of the case are that the plaintiff had filed the present suit seeking recovery of possession of flat no.18, New Vindhaychal Coop. Group Housing Society, Plot no.41, Sector13, Rohini, Delhi110085 (hereinafter referred to as "the suit property"). The 1/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 plaintiff had also prayed for recovery of damages and for permanent injunction restraining the defendant from creating third party interest in the suit property.
3. The prayer for recovery of possession of the suit property was decreed under Order 12 Rule 6 of Code of Civil Procedure by order dated 30.10.2012. The prayer for permanent injunction was abandoned by the plaintiff on 29.10.2013. Hence, the only surviving prayer is for recovery of damages which shall be decided by this judgment.
4. The plaintiff has claimed to be the owner of the suit property. According to the plaintiff, the defendant was tenant in the suit property whose tenancy had been terminated and thus the defendant has become liable to pay damages/mesne profits to the plaintiff.
5. By the suit, the plaintiff had prayed for damages of Rs.2,76,000/. However on 29.10.2013, the plaintiff abandoned his prayer for damages to the extent of Rs.24,000/ and pressed his suit for recovery of the remaining damages of Rs.2,52,000/.
6. The defendant has filed written statement. In the written statement, the defendant has denied all the averments made in the plaint. He has, in particular, denied receiving legal notices of termination of tenancy and the reminders.
7. After completion of pleadings, issues were framed by order dated 27.02.2013 passed by the Ld. Predecessor of the Court, as follows:
1. Whether the plaintiff is entitled to a decree of mesne profits from the defendant? OPP.
2. Relief.
2/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11
8. The plaintiff led evidence in support of his case. He examined himself as PW1. PW1 tendered his affidavit Ex.PW1/1 In evidence. He reiterated the averments made in the plaint. PW1 also identified and relied upon the following documents:
a) Allotmentcumpossession letter as Mark "A";
b) Site plan as Ex. PW1/B;
c) Letter dated 01.10.08 as Ex. PW1/C;
d) Copy of legal notice dated 06.12.08 as Ex.PW1/D;
e) Office copy of legal notice dated 06.12.08 as Ex.PW1/E;
f) Copy of legal notice dated 05.11.09 as Ex.PW1/F;
g) Office copy of legal notice dated 05.11.09 as Ex.PW1/G;
h) Postal receipts along with delivery reports as Ex.PW1/H;
i) Electricity bill, water bill and payment receipts as Ex.PW1/I. PW1/plaintiff was not crossexamined on behalf of defendant and was discharged. Plaintiff's evidence was closed. The defendant did not lead evidence.
9. I have heard final arguments and have perused the record. My issue wise findings are as follows:
ISSUE No.1 "Whether the plaintiff is entitled to a decree of mesne profits from the defendant? OPP. "
10.The onus to prove this issue was upon the plaintiff.
11.The plaintiff has sought recovery of Rs.2,52,000/ as prelitigation damages/mesne profits. According to the plaintiff, the agreed rate of rent of the premises was Rs.4,000/ per month. As per the plaint, the 3/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 plaintiff issued legal notices dated 02.12.2008 and 06.12.2008 to the defendant to vacate the premises. As per the plaintiff, he thereafter sent reminders dated 05.11.2009 and 31.12.2009 to the defendant. According to the plaintiff, tenancy has been terminated by way of notice and the defendant is liable to pay damages. The plaintiff has claimed presuit damages at the rate of Rs.8,000/ per month from December 2008 till December 2009, damages at the rate of Rs. 12,000/ per month from January 2010 till June 2010 and damages at the rate of Rs.20,000/ per month from July 2010 till the filing of the suit. The plaintiff has reiterated his case in his affidavit Ex.PW1/1. He has not been crossexamined on behalf of the defendant. No evidence to the contrary has been led by defendant.
12.According to the plaintiff, the tenancy of the defendant has been terminated by service of notice under Section 106 of the Transfer of Property Act.
13.The defendant has denied the termination of tenancy. As per the defendant, he has not received any notice of termination of tenancy. According to the defendant, he continues to be the tenant of the plaintiff.
14.It is not in dispute between the parties that the defendant has been the tenant of the plaintiff. Reference is made to paragraph no.4 of the plaint and the corresponding paragraph of reply on merits of the written statement. The defendant has been accepting the plaintiff as his landlord and has admittedly been tendering rent to him. It is thus indubitably established that the defendant has been the tenant of the plaintiff in the suit property.
4/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11
15.It is not in dispute that the tenancy is for purposes other than agriculture and manufacture and as per Section 106 of the Transfer of Property Act, 1882 it is treated as a month to month tenancy. As per Section 106 of the Transfer of Property Act, 1882, the tenancy is terminable by fifteen days' notice.
16.The plaintiff has stated that he terminated the tenancy of the defendant by service of legal notice under Section 106 of Transfer of Property Act. According to the plaintiff, he had issued notices dated 02.12.2008 and 06.12.2008. As per the plaintiff, he sent the said notices for termination of tenancy and the same were duly served upon the defendant. This plea finds mention in the plaint and has been reiterated in the testimony of the plaintiff PW1 in his affidavit Ex. PW1/1. The plaintiff has also identified the said notices as Ex.PW1/D and Ex.PW1/E. The plaintiff has also identified the postal receipt as Ex.PW1/H.
17.The defendant has, on the other hand, led no evidence to show that the notices were not served upon him. He has not even cross examined the plaintiff. There is no reason to disbelieve the uncontroverted testimony of the plaintiff that he had served the aforesaid notices upon the defendant. There is also no reason to doubt the veracity of the documents, particularly the notices and postal receipt, relied upon by the plaintiff. The defendant has not disputed that the addresses mentioned in the notices were under his occupation at the time when the notices were dispatched. Since the legal notices bear his correct address, it must be presumed that the notices have been served upon the defendant. The defendant has 5/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 failed to disclose any reason which could have prevented the service of notice upon him. Under Section 114 of Evidence Act, the existence of facts which are likely to have happened in the ordinary course of human conduct and business may be presumed. Particular reference may be made to illustration (f) of Section 114. By common course of business, the notices would have been received by the defendant. Under Section 27 of the General Clauses Act, 1897 also, the service of legal notice upon the defendant may be presumed.
As held in the case of Madan Lal Sethi Vs. Amar Singh Bhalla, 1980 (2) AIRCJ 543, a mere bald denial by the defendant of service of notice is not sufficient to rebut the presumption under Section 114 of illustration
(f) of the Evidence Act. Some other evidence to show the interruption of post has to be adduced by the tenant.
On this point, the Hon'ble High Court of Delhi has, in the case of Vinod Khanna v. Bakshi Sachdev (Deceased) through LRs, AIR 1996 Delhi 32 noted thus:
"From Ex. P1 to P11 it is proved and established that the aforesaid notice dated 12.12.1988 (Ex. P1) terminating the tenancy was dispatched to defendant No. 2 at its registered office and also to the appellant No. 1 and 3 at their addresses at 5, Golf Links, where they were admittedly residing, as is disclosed from the evidence of DW 1/appellant No. 1. In view of the dispatch of the said notices to the appellants/defendants individually at their proper addresses now the question arises as to whether a presumption of service of notice could be drawn in favour of the plaintiff or not. The basic law of presumption of service of notice is permitted under the provisions of Section 27 of the General Clauses Act and also under the provisions of Section 114 of the Evidence Act. The earliest case on the issue of drawing of presumption of service under such circumstances is probably the case of Hari Har Bannerjee v. Ram Shashi Roy, AIR 1918 Privy Council 102, 6/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 wherein it was held that if a letter properly directed containing a notice to quit, is proved to have been put in the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender had taken the precaution to register. In the case of M/s. Madan v. Wazir J.V. Chand the Apex Court had held that all that a landlord can do is to comply with the provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and that once the same is done and a letter is delivered to the post office, he has no control over it and that it can then be presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. The above being the settled law and in the present case it having been proved by the plaintiffs that a notice as envisaged under Section 106 of the Transfer of Property Act having been issued by the plaintiffs to the concerned defendants at their residential address in accordance with law, it can well be presumed under the aforesaid provisions statutory as well as case laws that the said notices have been duly served on the said defendants and therefore, in that view of the letter we do not find any infirmity to interfere with the findings of the learned trial court that the notice terminating the tenancy was duly, properly and validly served on the defendants."
Reference may also be made to the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007(2) DCR 321 SC in which the Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been 7/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 delivered in the ordinary course of business".
18.It is therefore safe to presume that the said notices were duly served upon the defendant.
19.The legal notice dated 02.12.2008 Ex.PW1/D states that the tenancy of the defendant is terminated and the defendant shall vacate the suit property within fifteen days from the date of receipt of the notice. The notice satisfies the requirement of Section 106 of Transfer of Property Act, 1882. By way of the said legal notice, tenancy of the defendant stood terminated, in keeping with Section 111(h) of the Transfer of Property Act, 1882. The defendant became an illegal occupant on termination of tenancy and became liable to pay damages/mesne profits for the period during which he overstays in the property.
20.The legal notice was dispatched on 02.12.2008 as is evident from the postal receipt (UPC). Since the notice was dispatched from Chandigarh and was destined for Sonepat, it appears that the aforesaid legal notice would have been served upon the defendant by 10th December 2008. The notice affords fifteen days' time for vacating the suit property. Thus, the defendant became liable to vacate the property by 25th day of December 2008. It is only thereafter that the defendant became liable to pay damages/mesne profits.
21.The second legal notice dated 06.12.2008 Ex.PW1/E was also dispatched on the same day. Since the notice was sent from Chandigarh to Delhi, by speed post, the notice is deemed to have been delivered by 10th December 2008. This notice gives a period of 8/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 one month to the defendant to vacate the premises. Further, as per the notice, the defendant would be charged a sum of Rs.7,500/ per month if possession is not handed over. By sending the second notice, the plaintiff appears to have extended the period during which the defendant may occupy the premises. By the said notice, the period with effect from which the defendant became liable to pay mesne profits commenced from 10th day of January 2009.
22.The tenancy of the defendant thus stood terminated and the defendant has become an illegal occupant of the suit property from 10th January 2009. For the said occupation, the defendant must pay charges to compensate the plaintiff. The charges are payable till vacant physical possession of the property was handed over to the plaintiff.
23.The question now for consideration is at what rate should the said charges be paid. Mesne profits has been defined by Section 2(12) of Code of Civil Procedure as profits which the wrongful occupant actually received or might have, with ordinary diligence, received. It has been consistently laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent. To determine the quantum of mesne profits/damages, reference may be made to the case of Bakshi Sachdev (D) by L.Rs. Vs. Concord 1993 RLR 563, wherein Hon'ble High Court of Delhi held that the damages and mesne profits can be granted at a higher rate than the agreed rate of rent after the expiry of the tenancy and after taking judicial notice of the phenomenal rise in rents in Delhi. It must also be borne in mind that the agreed rate of rent amongst the parties to the suit, in the year 9/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 2003, was Rs.4,000/ per month. Taking judicial notice of increase of rentals in Delhi, it can safely be held that the market rate of rent in the year 2009 would be Rs.7,500/ per month. Having regard to the location and extent of the property too, this would be the fair market rate of rent. Also, this is the rate of usage charges which the plaintiff has stated in his notice dated 06.12.2008 Ex.PW1/E that he will be claiming from the defendant. Since the defendant continued in the premises after being informed that he will have to pay usage charges at the said rate, the defendant cannot plead to the contrary and is deemed to have accepted and consciously invited the said liability. Although the plaintiff has, in the plaint, sought to recover charges at the rate of Rs.8,000/ per month, it would not be fair to the defendant to award charges at the said rate since the defendant was informed by the aforesaid notice that he will have to pay Rs.7,500/ per month for overstaying in the premises. This was reiterated by notice dated 05.11.2009 Ex.PW1/F. Further, the plaintiff, in the said notice, stated that at that time the prevailing market rate of rent was Rs.7,500/ per month. The plaintiff cannot therefore be permitted to claim that the market rate was higher than the said sum.
24.It is concluded that the plaintiff is entitled to recover mesne profits/damages from the defendant at the rate of Rs.7,500/ per month from 10th January 2009 till the end of December 2009. For the said period, the plaintiff has admittedly been paid usage charges at the rate of Rs.4,000/ per month. The plaintiff can therefore recover the balance that is at the rate of Rs.3,500/ per month. This amounts to Rs. 40,834/.
10/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11
25.For the period commencing from January 2010 till June 2010, the plaintiff has sought to recover damages at the rate of Rs.12,000/ per month. In support of the said claim, the plaintiff has stated in his evidence that he had served upon the defendant notice dated 31.12.2009 that the defendant would be liable to pay charges at the said rate. In the legal notice dated 31.12.2009, the plaintiff has stated that the market rate of rent is Rs.12,000/ per month and that rent will be charged at this rate. The defendant did not reply to the said notice. He continued in the premises despite knowing that he will be charged at the said rate. The defendant is thus deemed to have accepted the said claims of the plaintiff. PW1 has also not been cross examined by the defendant. The defendant has not led any evidence to show that the market rate of rent at that time was less than Rs. 12,000/ per month. The plaintiff has thus succeeded in establishing that he is entitled to recover mesne profits from January 2010 till June 2010 at the rate of Rs.12,000/ per month. This amounts to Rs.72,000/ in aggregate. The plaintiff has stated that he has received a sum of Rs. 4,000/ per month for this period from the defendant. Setting it off, the plaintiff is entitled to recover a sum of Rs.48,000/.
26.For the period from July 2010 till 15th April 2011 (date of institution of the suit), the plaintiff has claimed mesne profits at the rate of Rs. 20,000/ per month. The enhancement of claims of the plaintiff with effect from July 2010 is not supported by any document. There is nothing to suggest that with effect from July 2010, there was a surge in the prevailing rentals in the locality. There is also no notice preceding the said period which could justify the enhancement of claims of the 11/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 plaintiff. The plaintiff has not stated in his affidavit in evidence that the prevailing rate of rent in July 2010 was Rs.20,000/ per month. In paragraph no.11 and in paragraph no.15 of the affidavit, the plaintiff has stated that the prevailing rate of rent was Rs.20,000/ per month at the time of institution of the suit, and not in July 2010. The plaintiff has also not produced lease deeds of other properties in the vicinity which could suggest the enhancement of rate of rent. Also, it seems unlikely that the rate of rent would rise from Rs.12,000/ to Rs.20,000/ within a span of six months. Hence, the claim of the plaintiff for damages at the rate of Rs.20,000/ per month from July 2010 till 15th April 2011 is declined. The plaintiff shall however be entitled to damages at the rate of Rs.12,000/ per month for the said period. The plaintiff is thus entitled to recover a sum of Rs.1,14,000/. For this period, as per the plaintiff, no payment has been made by the defendant. The defendant has also not proved having made any payment during the said period. Hence, no sum is required to be deducted from the aforesaid claim and the plaintiff is entitled for recovery of Rs.1,14,000/ from the defendant.
27.The suit was instituted on 15.04.2011. According to the plaintiff, at that time, the prevailing market rate of rent was Rs.20,000/ per month. This plea finds mention in the plaint as well as affidavit in evidence of the plaintiff. The plaintiff has not been crossexamined by the defendant. No evidence to the contrary has been led by the defendant. It thus stands proved that the prevailing rate of rent of the suit property, at the time of institution of the suit, was Rs.20,000/ per month. The plaintiff is entitled to recover mesne profits at the said rate from the date of 12/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 institution of the suit till the date of recovery of possession of the suit property, which is stated in the affidavit of PW1 to be 22.12.2012. This amounts to Rs.4,04,000/. The plaintiff is thus entitled to pendente lite mesne profits of Rs.4,04,000/.
28.It is noticed from the record that in the affidavit in evidence, the plaintiff has sought recovery of Rs.2450/ as arrears of electricity charges and the sum of Rs.15,000/ as arrears of maintenance and water charges. The said claims of the plaintiff cannot be entertained. No such prayer has been made in the plaint. By virtue of the suit, the plaintiff has sought recovery of occupation charges. Arrears of electricity charges, water charges and maintenance charges are not the subject matter of the suit. Consequently no issue has been framed about the said claims. It appears that the plaintiff is trying to travel beyond the pleadings to canvas the said claims. The said claims of the plaintiff are accordingly rejected.
29.It is summed up that for occupation of the suit property till the date of institution of the suit, the defendant is liable to pay a total sum of Rs. 2,02,834/ to the plaintiff. A further sum of Rs.4,04,000/ is payable by the defendant as pendente lite mesne profits.
30.Although not specifically prayed for in the plaint, under Section 34 of Code of Civil Procedure, the plaintiff is awarded interest at the rate of 6% per annum on the sum of Rs.2,02,834/ from the date of institution of the suit till the date of this decree and interest at the rate of 6% per annum on the sum so adjudged from the date of this decree till realization. The plaintiff is also awarded interest at the rate of 6% per annum on the sum of Rs.4,04,000/ from 22.12.2012 (date of receiving 13/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11 possession) till realization.
31.The issue is decided in favour of the plaintiff and against the defendant.
Issue No. 2
"Relief."
32.The suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is entitled to recover a sum of Rs.2,02,834/ from the defendant with interest thereon at the rate of 6% per annum from the date of institution of the suit till the date of this decree and interest at the rate of 6% per annum on the sum so adjudged from the date of this decree till realization.
The plaintiff is entitled to recover a further sum of Rs.4,04,000/ from the defendant with interest at the rate of 6% per annum from 22.12.2012 till realization. This direction is for payment of pendente lite mesne profits and shall be executable only after payment of appropriate court fee thereon.
The plaintiff is also entitled to recover costs of the suit from the defendant.
Decree sheet shall be prepared. File be consigned to record room. Announced in the open Court on 30 October 2013.
th (Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District,Rohini Courts, Delhi.
14/14 Ashwani Kumar Sharma Vs. Khem Singh Rana Suit no.158/11