Delhi District Court
Suit No. 874/06 vs Sardar Prithipal Singh on 3 April, 2010
IN THE COURT OF SH. SAMAR VISHAL, CJ02 (North), DELHI SUIT NO. 874/06 MEMO OF PARTIES. Sh. Ashok Kumar Chaudhary, Sp Sh. Mahabir Prasad Chaudhary, R/o 169, Kalyan Vihar, New Delhi. ............Plaintiff Versus Sardar Prithipal Singh, Perfect Air Conditioning, 169, Kalyan Vihar (Ground Floor), New Delhi. ...........Defendant SUIT FOR POSSESSION, MESNE PROFITS, PERMANENET AND MANDATORY INJUNCTION Date of institution of Suit: 11.09.1997 Date on which judgment was reserved: 15.03.2010 Date of announcement of judgment: 03.04.2010 Judgment This is a suit for possession filed by the plaintiff against the defendant. Plaintiff alleges that he has purchased the property bearing No.169, Kalyan Vihar, New Delhi(hereinafter referred to as a ``suit property'' from its previous owner Sh. Sat Pal Maggon on 16.3.1996 for a sum of Rs.7,00,000/ on execution of relevant documents. At the time when the property was purchased, the defendant was not in possession of the suit property but later on when the plaintiff visited the suit property, he found that the defendant was in Ashok Kumar Vs. Pritpal Singh 1 Suit No.874/06 occupation of the portion of one room on the ground floor which he was using as a shop for servicing refrigerators, air conditioners etc. He immediately contacted the police station and lodged a complaint against the defendant of his illegal occupation of the suit property. The defendant at that time assured the plaintiff that he will vacate the suit property soon and pleaded not to make any complaint against him. Later on plaintiff repeatedly approached the defendant but the defendant refused to keep his words and has not vacated the suit property and also made certain additions by putting a tin shed above the door of the room extending into the street. Defendant has also approached the Delhi Vidyut Board for installation of electricity meter in his name which was so installed. The case of the plaintiff is that the defendant is an illegal occupant of the suit property. The defendant was not in occupation of any portion and later on after the purchase when he visited the suit property, he found defendant in possession of one room on the ground floor. The plaintiff issued a legal notice dated 26.3.1997 to the defendant to vacate the suit property, which was replied by defendant vide his letter dated 6.12.1997and this reply was replied by plaintiff vide his reply dated 21.4.1997. The plaintiff has also stated that even the original owner prior to Sh. Sat Pal Maggon namely Sh. Jugal Kishore Bhatia and after his demise, Smt. Chander Kala Bhatia never inducted the defendant as tenant. With these averments plaintiff has prayed for the relief of possession alleging the defendant as trespasser and for the damages for unauthorized use and occupation of the suit property as well as injunction directing the defendant to demolish the unauthorized addition/alteration done in the suit property. In reply, the defendant has opposed the plaint alleging that he is a tenant by operation of law. Defendant took a preliminary objection that he was a tenant under the previous owner of suit property since the year 1984. He was occupying one out of four shops built and attached to the suit property at a monthly rent of Rs.225/ per month since 15.2.1984 and the Ashok Kumar Vs. Pritpal Singh 2 Suit No.874/06 rent was increased to Rs.247/ per month from 15.9.1989. The last paid rent to Smt. Chander Kala was on 15.10.1993. No rent was either claimed or paid thereafter. However, on 15.11.1984, defendant remitted a sum of Rs.248/ rupees towards one month's rent to Smt. Chander Kala, The rent was received back. The said rent later could not be deposited in the Court in the absence of whereabouts of the landlady who had locked the premises and gone to unknown place. Notice dated 26.3.1997 has been admitted. It is also alleged that defendant is in continuous business since the inception of the tenancy. He has electricity connection in his own name with a commercial meter installed and telephone no. 7115220 and he cannot be termed as trespasser and since the last agreed rent of the suit property was Rs.248/, he cannot be evicted by a suit for possession in a Civil Court and only the Court of Ld. Rent Controller has a jurisdiction to pass eviction order. It is also alleged by the defendant that if he has obtained the forceful possession of the suit premises then the Executive Magistrate has sufficient power u/S 146 Cr.PC to take action against him. It is alleged by him that no document of title was furnished to the defendant by the plaintiff. With these assertions defendant has requested for the dismissal of the suit. In replication there is denial of material allegations made by the defendant in his written statement and repetition of plaint averments. In this case following issues are framed on 5.3.1998; 1.
Whether the suit of the plaintiff is barred u/S 50 of D.R.C Act as alleged in para 1 of written statement (Preliminary objection) OPD.
2. Whether the defendant is a trespasser in the property and is in illegal possession? OPP.
Ashok Kumar Vs. Pritpal Singh 3 Suit No.874/06
3. Whether the plaintiff is entitled to the possession of the suit property? OPP.
4. Whether the plaintiff is entitled to the mesne profit, if so at what rate and for what period? OPP.
5. Relief.
In order to prove his case plaintiff has examined himself as PW1, Sh. K.S. Kadam as PW2, Sh. Arjun Singh as PW3.
On the other hand defendant has examined himself as DW1.
My issuewise findings are as follows;
Issue No.1 Whether the suit of the plaintiff is barred u/S 50 of D.R.C Act as alleged in para 1 of written statement (Preliminary objection) OPD. Issue No.2 Whether the defendant is a trespasser in the property and is in illegal possession? OPP.
For the sake of convenience, issue no.1 & 2 are decided simultaneously as they are interrelated to each other.
The burden to prove issue no.2 is on the plaintiff. Plaintiff has alleged that when he purchased the suit property from its previous owner, it was told to him by the previous owners that there are no tenants in the suit property. It is also alleged by him that at the time of purchasing the property, he visited the suit property and he did not found any person there and the property was locked. Later on he found defendant in illegal possession of the suit property. To prove this fact he has only examined himself as the witness of fact and he has deposed whatever he has alleged in his plaint.
On the other hand, defendant has deposed that ``He is in occupation of one shop and he was inducted as a tenant of Sh. Jugal Kishore Bhatia the then landlord of the suit property. He paid rent to Sh. Jugal Kishore Bhatia, then his wife Smt. Chander Kala Bhata Ashok Kumar Vs. Pritpal Singh 4 Suit No.874/06 till 1993 and he has obtained rent receipts exhibited as Ex.DW1/1, Ex.DW1/2 and Ex.DW1/3. He sent the rent through money order. The sending slips are Ex.DW1/4 and it was returned back unclaimed which Ex.DW1/5. Plaintiff has tried to forcefully evict the defendant from the suit property and lodged police complaint against him dated 26.3.1996 which is Ex.DW1/6. Plaintiff also cut off his electricity to compel him to vacate the suit property but he again applied and got it connected. The electricity bill is Ex.DW1/7. After having failed to evict him by force, the plaintiff has filed the present suit which is totally false. In the year 1995, a complaint was lodged by one of his customer regarding the deficiency of service in the Consumer Court and the certified copy of the order is Ex.DW1/8. He has a bank account with Punjab National Bank, Delhi whose copy of pass book containing statement of account is ExDW1/9. He has telephone no.7115220 in the suit property since the year 1992 and the bill for the period 1.6.1992 to 31.7.1992 is Ex.DW1/10. He was fined by MCD for displaying goods outside his shop and one of such receipt No. 589095 dated 6.2.1990 is Ex.DW1/11. Other receipts are Ex.DW1/12 and Ex.DW1/13.'' In cross examination he has deposed that ``He was inducted in the suit premises as a tenant by Sh. Jugal Kishore Bhatia. No rent agreement was executed between him and Sh. Jugal Kishore Bhatia. The tenancy was created in the name of his wife and he was working with her as a partner. The rate of rent was Rs.225/ exclusive of water and electricity charges. No one was present at the time of settlement of tenancy. He has denied the suggestions that the rent receipts are forged. He has admitted that after 15.10.1993, the rent was not paid to Sh. Jugal Kishore or his wife Smt. Chander Kala as they allegedly sold the property. He has deposed that the landlord was providing him electricity from 1984 to 1996. He was never given any notice of vacation of suit property by the previous owner.'' There is nothing in his cross examination which can discredit or impeach his credibility. The coherent Ashok Kumar Vs. Pritpal Singh 5 Suit No.874/06 testimony of the defendant as well as the document placed by him on record clearly establishes that he is a tenant in the suit property. He was inducted by the previous owner prior to the alleged sale and therefore, he cannot be termed as a trespasser. On the other hand plaintiff has not produced any independent evidence in this respect that the defendant do not have the shop named M/s Perfect Air Conditioners prior to 1996 because allegedly he is the owner of the four shops adjoining this shop and could have easily proved by independent evidence that no shop in the name of M/s Perfect Air Conditioning is running prior to the year 1996. Similarly, he could have produced the previous owner from whom he has purchased the property to prove that the property has not given on rent to any person or the property dealer namely Sh. Balbir who was involved in the sale of the suit property was also not produced. The agreement to sell as well as the conveyance deed on which the plaintiff is relying are the photostat copies and hence are secondary evidence. No reason has been given why the originals are not produced in the Court. Even otherwise, the document marked as A, which is a sale agreement between the plaintiff and its previous owners cannot be constituted as sufficient to transfer the ownership of the suit property and therefore, I also doubt whether the plaintiff is the owner of the suit property or not in the present case. I am of the view that the defendant is the tenant of the suit property and he is not a trespasser. Once it is clearly established that the defendant is a tenant and the rent of the premises is less than Rs.3,500/ and relationship of landlord and tenant is established, the bar of section 50 of Delhi Rent Control Act will operate. Section 50 of DRC act reads as under;
Section 50 of the Delhi Rent Control Act, 1958 which reads under : "(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 Ashok Kumar Vs. Pritpal Singh 6 Suit No.874/06 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 this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9the day of June, 1955, such suit or proceedings shall, on such commencement, abate.
(3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day, of August, 1958 from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951 but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as Controller thinks fit.
(4) Nothing in Subsection (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decisions of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."
In view of the aforesaid discussion, this issue is decided against the plaintiff and in favour of the defendant.
Ashok Kumar Vs. Pritpal Singh 7 Suit No.874/06 Issue No.3 Whether the plaintiff is entitled to the possession of the suit property? OPP. Issue No.4 Whether the plaintiff is entitled to the mesne profit, if so at what rate and for what period? OPP.
For the sake of convenience, issue no.3 & 4 are decided simultaneously as they are interrelated to each other.
Once it is established that the defendant is not a trespasser and he is a tenant of the suit property, the suit is barred by section 50 of DRC act and this Court has no jurisdiction to make any eviction order or to make any order of giving possession to the plaintiff in this case. Therefore, this issue is decided against the plaintiff and in favour of the defendant. Since the suit is barred u/S 50 of DRC act, therefore, plaintiff may be only entitled for the rent of the suit premises. This issue is decided accordingly. Issue No.5 Relief.
This suit was filed in the year 1997 and already 17 years of judicial time have been consumed by the plaintiff who is unable to prove that he is the owner of the suit property or that the defendant is a trespasser. In my view, plaintiff is not entitled for any kind of relief in this case. From the overall evidence on the record the whole claim of the plaintiff including that of ownership of the suit property appears to be frivolous and vexatious. The suit deserves to be dismissed with exemplary cost of Rs 3000 along with the cost of litigation . Therefore, the suit is dismissed .
Announced in the open Court on (SAMAR VISHAL) 03.04.2010 CJ 02 (North)/DELHI 03.04.2010.
Ashok Kumar Vs. Pritpal Singh 8 Suit No.874/06 03.04.2010 Suit No. 874/06 Vide separate judgment, suit of the plaintiff has been dismissed. Decree sheet be prepared accordingly.
File be consigned to the record room.
(Samar Vishal) CJ02/North/Delhi.
Ashok Kumar Vs. Pritpal Singh 9 Suit No.874/06