Delhi District Court
Nidhi Nayyar vs Ira Malhan on 22 August, 2024
1
Nidhi Nayyar Vs. Ira Malhan
IN THE COURT OF GAURAV DAHIYA
CIVIL JUDGE 03,
SHAHDARA DISTRICT, KKD COURTS, DELHI
Civil Suit No :- 605/21
Date of Institution: 31.07.2021
Date of Decision : 22.08.2024
Nidhi Nayyar
W/o Sh. Manoj Nayyar
D/o Shri Suresh Sharma
R/o U-1, First Floor,
Naveen Shahdara, Delhi-32
...............Plaintiff.
V.s.
Ira Malhan
D/o Sh. Arun Kumar Malhan
R/o T-16, Ground Floor,
Naveen Shahdara, Delhi-32.
.............Defendant.
SUIT FOR EJECTMENT/POSSESSION, ARREARS OF RENT,
MESNE PROFIT @ Rs.15,000/- P.M.
Present:- None.
JUDGMENT :-
1. The present suit has been filed by the plaintiff against the defendant seeking the relief of ejectment/possession of tenanted Civil Suit No:- 605/21 (Gaurav Dahiya) CJ-03/KKD/Delhi 2 Nidhi Nayyar Vs. Ira Malhan property T-16, Naveen Shahdara, Delhi-32 (hereinafter called as the 'suit property') against the defendant whereby defendant may be directed to vacate and handover the peaceful possession of the premises to plaintiff; decree for arrears of rent to the tune of Rs.1,20,000/- and decree of mesne profit/use and occupation charges @ Rs.15,000/- per month from 01.07.2021 till realization of the vacant possession of the suit property; and to award the cost of the suit and any other relief as deemed fit by the court in favor of plaintiff.
Case Of Plaintiff :-
2. In brief, the case of the plaintiff is that plaintiff is the co- owner/co-landlady of the ground floor of suit property as being the legal heir of Smt. Neelam Sharma. That Smt. Neelam Sharma was the sole and absolute owner/landlady of the suit property and during her lifetime, she inducted defendant as tenant into the suit property vide rent agreement dated 15.10.2018 for period of 11 months at monthly rent of Rs.8000/- per month excluding electricity, water charges and all other charges. That prior to 15.10.2018 plaintiff and Smt. Neelam Sharma were residing in the said property, however, after letting out the said premises on rent, plaintiff and Smt. Neelam Sharma got shifted in U-1, First floor, Naveen Shahdara, Delhi-32. That Smt. Neelam expired on 14.07.2020 at Delhi. After her death, she left four legal heirs including plaintiff, Smt. Alka Saran, Smt. Shikha Singh and Smt. Nishima Dubey. However, except the plaintiff, the rest of the three daughters are residing in U.P. Moreover, during the lifetime of Smt. Neelam Sharma, plaintiff was collecting the rent from the defendant. That the tenancy of the defendant starts at first day of each Civil Suit No:- 605/21 (Gaurav Dahiya) CJ-03/KKD/Delhi 3 Nidhi Nayyar Vs. Ira Malhan month and ends on the last day of same month. That during the lifetime of Neelam Sharma, she enhanced the rent of the defendant from Rs.8000/- p.m. to Rs.10,000/- p.m. w.e.f. 01.10.2019. That defendant paid rent @ Rs.10,000/- p.m. to Late Smt. Neelam Sharma from 01.10.2019 upto 30.06.2020. That thereafter, defendant stopped paying the rent. That Smt. Neelam expired on 14.07.2020 and defendant took advantage of the same and stopped paying the rent of the premises to plaintiff or any other legal heir of Smt. Neelam. That even during the lifetime of Smt.Neelam, defendant has a habitual defaulter in paying the rent and never used to pay the rent on time. That defendant had not paid the rent from 01.07.2020 despite repeated requests and reminders by the plaintiff. Thereafter, a legal notice dated 09.06.2021 was sent by the plaintiff to defendant terminating the tenancy of the defendant and demanding arrears of rent. That defendant had failed to comply with the legal notice. That defendant is liable to pay arrears of rent to the tune of Rs.10,000/- w.e.f 01.07.2020 to 30.06.2021, which amounts to Rs.1,20,000/- and further liable to pay mesne profit and damages @ Rs.15,000/- per month w.e.f. 01.07.2021 till realization of the vacant possession of the suit propert along with pendente lite and future interest @ 15% p.a. on the recoverable amount. That plaintiff was left with no other legal and efficacious remedy than to file the present suit.
CASE OF DEFENDANT :-
3. Upon summons being issued, defendant appeared through her counsel and filed WS. Preliminary objections were taken stating that present suit is not maintainable as being devoid of cause of action and Civil Suit No:- 605/21 (Gaurav Dahiya) CJ-03/KKD/Delhi 4 Nidhi Nayyar Vs. Ira Malhan improper valuation of the suit. That plaintiff has not come to this court with clean hands and has concealed true and material facts. It is stated that Smt. Neelam Sharma was the owner of the suit property and she had let out the property to the defendant on rent for monthly rent of Rs.8000/-. That Smt. Neelam along with plaintiff came to the plaintiff and asked to give security amount of Rs.2 lakh and it was agreed that rent of the defendant would be adjusted from the said security amount. That on 07.03.2020, defendant gave Rs. 2 lakhs to Smt. Neelam in front of the plaintiff and Smt Neelam promised to executed an agreement, however, despite reminders from defendant she did not execute any agreement. That thereafter, the lockdown was enforced due to covid-19 and later Smt. Neelam expired on 14.07.2020. That when defendant asked the plaintiff to execute the agreement, she evaded the same on one pretext or the other. That defendant had malafide intention to grab the money of the defendant. In reply on merits, contents of para 1 and 2 are stated to be matter of record. Contents of para 3 are denied stating that plaintiff never received any rent from the defendant. Contents of para 4 is state to be matter of record. Contents of para 5 are denied stating that rent was never enhanced by Smt. Neelam during her lifetime. It is further stated that defendant is paying all the electricity pertaining to the tenanted premises. All the other averments of the plaint are denied with request to dismiss the suit with heavy cost.
4. It is further pertinent to mention, matter was taken up for consideration by the court U/o XII Rule 6 CPC, with respect to relief of ejectment/possession and suit was partly decreed with respect to said relief vide separate order and decree dated 12.02.2024.
Civil Suit No:- 605/21 (Gaurav Dahiya)
CJ-03/KKD/Delhi
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Nidhi Nayyar Vs. Ira Malhan
Subsequently, as per report of Baillif, DH has taken the possession of suit property on 09.05.2024 during execution proceedings.
ISSUES :-
5. In view of pleadings of both the parties and in view of the order dated 23.03.2024, following issues were framed :-
1. Whether the defendant had given Rs.2 lakhs to the plaintiff as security amount on 07.03.2020? (OPD)
2. Whether plaintiff is entitled to decree of recovery of arrears of rent along with pendente lite and future interest and mesne profits/damages from the defendant, as prayed for? (OPP).
3. Relief.
PLAINTIFF'S EVIDENCE:-
6. To prove her case, the plaintiff examined herself in to the witness box as PW1 by tendering her affidavit Ex. PW1/A and also tendered some documents including:-
1. Site Plan which is Ex. PW1/1.
2. Legal notice dated 09.06.2021 which is Ex. PW1/2.
3. Original postal receipt which is Ex. PW1/3.
4. Adhaar card of deponent which is Ex. PW1/4 (OSR).
5. Copy of sale deed of suit property which is Ex. PW1/5 (OSR).
6. Copy of rent agreement which is Ex. PW1/6 (OSR).
7. Internent copy of death certificate which is Ex. PW1/7.
8. Internet copy of surviving member certificate which is Ex.
PW1/8.
9. Certficate under Section 65-B of IEA is Ex.PW1/9.
Civil Suit No:- 605/21 (Gaurav Dahiya)
CJ-03/KKD/Delhi
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Nidhi Nayyar Vs. Ira Malhan
Counsel for defendant failed to cross examine the plaintiff despite opportunities and consequently, the right of the defendant to cross examine the witness/plaintiff was closed vod 10.07.2024. Thereafter, PE was closed vide court order.
DEFENDANT'S EVIDENCE:-
7. Defendant failed to file any affidavit or lead any evidence despite effective opportunity and thereafter, DE was closed vide court order dated 31.07.2024 and matter was fixed for final arguments.
8. The contentions raised by the Ld. counsel for plaintiff have been heard and the material available on record in the file has been carefully and minutely perused. The defendant failed to appear at the final stage and no written submissions were filed. My issue wise findings with reasons thereof are as under :-
ISSUE NO. 19. The onus to prove issue no.1 was placed on the defendant as the defendant in her WS has taken a stand that she had advanced Rs.2 lakhs to the plaintiff and her mother after taking the property on rent. To discharge the burden, the defendant has not led any evidence and has not even cross examined the plaintiff to secure some direct or indirect admission. Thus, the defendant has failed to discharge the said burden and accordingly, issue no.1 is decided against the defendant.
Civil Suit No:- 605/21 (Gaurav Dahiya)
CJ-03/KKD/Delhi
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Nidhi Nayyar Vs. Ira Malhan
ISSUE NO.2 :-
10. The burden to prove the case and issue no.2 was upon the plaintiff and to discharge her burden, the plaintiff examined herself as PW1. As per rent agreement dated 14.10.2018 exhibited by the plaintiff as Ex.PW1/6 (OSR) the rent was fixed @ Rs. 8000/- per month to be paid by the tenant to the landlord. In her evidence affidavit Ex.PW1/A, plaintiff has deposed that the rent was enhanced subsequently to Rs.10,000/- w.e.f 01.10.2019 which was paid upto 30.06.2020. No fresh agreement for enhanced rent was ever executed and plaintiff has deposed that no rent was paid w.e.f 01.07.2020.
11. The defendant failed to cross examine the plaintiff and PW1 has fully deposed her version on oath and her testimony has remained unrebutted as the defendant has failed to conduct any cross examination. Further the rent agreement Ex.PW1/6 is a notarized document, which has also been admitted by the defendant in her WS and based on which, it can be safely concluded that rate of rent of the suit property at the time of inception was Rs.8000/- per month which was subsequently enchanced to Rs.10,000/-, for which last installment of the same amount was paid by the defendant in the month of June 2020. There is nothing to disbelieve the story put forward by the plaintiff.
12. Further, it is the case of the plaintiff that the tenancy of the defendant was terminated by way of legal notice Ex.PW1/2 dated 09.06.2021, which was served on the defendant. The same has also been admitted by the defendant in her WS. As per statutory mandate Civil Suit No:- 605/21 (Gaurav Dahiya) CJ-03/KKD/Delhi 8 Nidhi Nayyar Vs. Ira Malhan contemplated under Section 106/107 of TP Act, the legal notice to vacate the premises may be deemed to be a notice of 15 days period provided for vacating the premises and making alternate arrangements.
13. Accordingly, it can be safely concluded that the defendant became the unauthorized occupant of the suit property. Therefore defendant is liable to pay the arrears of rent for the period of 01.07.2020 till 30.06.2021. As far as claim of pendente lite and future interest on arrears of rent is concerned, the same is on higher side and in the absence of any contractual liability, the same is allowed @ 6% p.a w.e.f. 31.07.2021 till actual recovery of the decreetal amount.
14. Moreover, mesne profits @ Rs.15,000/- per month have also been claimed w.e.f 01.07.2021 till the date of vacating and handing over the peaceful possession of the tenanted premises. It is to observe that the rent of the property was Rs. 10,000/- per month when it was vacated and accordingly, mesne profits of Rs.15,000/- per month are on a very higher side and keeping in mind the financial and societal realities, this court is not inclined to allow mesne profits at such a high rate. However, to balance the interests and to compensate the plaintiff, mesne profits @ Rs.10,000/- per month seem to be reasonable and allowed to the plaintiff to be recovered w.e.f. 01.07.2021 till 09.05.2024, i.e. the date when the actual possession of the property was taken by the plaintiff.
RELIEF:-
Civil Suit No:- 605/21 (Gaurav Dahiya)
CJ-03/KKD/Delhi
9
Nidhi Nayyar Vs. Ira Malhan
15. In view of aforesaid discussion, suit of the plaintiff is hereby decreed with cost to the effect that the defendant is directed to pay @ Rs. 10,000/- per month as arrears of rent w.e.f 01.07.2020 till 30.06.2021 along with pendente lite and future interest @6% p.a w.e.f. 31.07.2021 till actual recovery of the decreetal amount. Again, plaintiff is also awarded damages/mesne profits @ Rs.10,000/- per month w.e.f. 01.07.2021 till 09.05.2024, which is the date when plaintiff has taken actual physical possession of the tenanted premises. The amount is to be paid within 01 month of the passing of the decree.
16. Suit is hereby decreed, however, the plaintiff is directed to file the court fees payable for aggregate amount of damages, calculated as per Sec. 11 of Court Fees Act. Decree sheet be prepared only thereafter. File be consigned to Record Room after due compliance.
Digitally signed by GAURAVGAURAV Pronounced In Open Court:
DAHIYA DAHIYA Date:
2024.08.23 15:34:40 +0530 Dated: 22.08.2024 (Gaurav Dahiya) Civil Judge-03 Shahdara, KKD Courts, Delhi Note :- This Judgment contains 09 pages and all the pages have been checked and signed by me. Digitally signed GAURAV by GAURAV DAHIYA DAHIYA Date: 2024.08.23 15:34:45 +0530 (Gaurav Dahiya) Civil Judge-03 Shahdara, KKD Courts, Delhi 22.08.2024 Civil Suit No:- 605/21 (Gaurav Dahiya) CJ-03/KKD/Delhi