Delhi District Court
Sh. Harsh Kumar Agarwal vs Sh. Swaran Kapoor (Now Deceased) on 27 July, 2018
IN THE COURT OF SH. RAJINDER SINGH
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
Suit. No. 730816
In the matter of:
Sh. Harsh Kumar Agarwal,
S/o Late Sh. Ishwari Prasad Agarwal,
R/o B2/65, Safdarjung Enclave,
New Delhi110029. ........Plaintiff
Vs.
1.Sh. Swaran Kapoor (now deceased) Through his legal heirs :
i) Mrs. Sudesh Kapoor, Wd/o Late Sh. Swaran Kapoor, R/o A7, Jangpura Extension, New Delhi.
ii) Mrs. Anuradha Chopra, W/o Sh. Mahesh Chopra, D/o Late Sh. Swaran Kapoor, R/o Flat No. 107 in Tower No. C1, Mayfair Tower, Charmswood Village, Faridabad.
iii) Mrs. Shivali Kapur, W/o Sh. Rohit Kapur, D/o Late Sh. Swaran Kapoor, R/o S229, Greater KailashII, New Delhi.
2. Sh. Rohit Kapoor, S/o Late Sh. Swaran Kapoor, R/o A7, Jangpura Extension, New Delhi. ......Defendants Suit No. 7308/16 Page..... 1/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
Date of institution of the suit : 30.05.2008 Date of reserving order : 13.04.2018 Date of pronouncement* : 27.07.2018
(On 13.04.2018, the matter was reserved for 18.05.2018 for judgment. However, on 18.05.2018, the undersigned had to go for training programme at Dwarka and therefore the matter was adjourned for 04.06.2018. On 04.06.2018, no time was left and the matter was adjourned for 27.07.2018 for judgment).
SUIT FOR PERMANENT AND MANDATORY INJUNCTIONS J U D G M E N T
1. Plaintiff's case: 1.1 Plaintiff has filed the present suit seeking following reliefs:
(a) Permanent injunction restraining the defendants and persons claiming through them from misusing, subletting and further damaging the suit property i.e. three rooms, WC & bath, kitchen, one balcony and open courtyard with temporary top cabin on the third floor in the property no.1567, pvt. Block no.3, Ishwar Niwas, Bhagirath Palace, Chandni Chowk, Delhi110006 (SIC), more particularly shown in red colour in the site plan.
(b) Mandatory injunction directing the defendants to repair the suit property and restore it to habitable condition. Also directing the defendants to clear arrears of electricity and water connections at the suit property and get restored the electricity and water connections at the suit property.
1.2 Defendants are tenants at the suit property under the plaintiff.
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Suit property was let out for residential purposes vide rent note dated 27.08.1981. It was specifically mentioned in the rent note that the suit property is not to be used as a godown. Stocking etc. of any goods in the suit property is not allowed. The commercial portion of the suit property relates to professional services normally allowed to residents (SIC).
1.3 Defendants have deserted the suit property more than 25 years ago and the same is lying locked. Suit property is lying vacant and idle for more than 25 years.
1.4 The electricity and water bills of the suit property have not been paid by the defendants. The house tax of the suit property is also not paid by the defendants.
1.5 Due to nonmaintenance/misuse, the suit property has suffered the following damages:
(a) The wooden cabin is suspended precariously and may fall down at any time. It can result in damage to the floor below. The wooden floor of the said wooden cabin has withered. If the said cabin falls, the plaintiff will not be liable for any damage to any person.
(b) The sunsheds over the doors and windows of the suit property are damaged. Reinforcement bars are visible (exposed) and have become weak.
(c) The terrace of third floor of the suit property is leaking due to
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Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
the rain water logging. This logging is a result of debris lying on the terrace which block the draining pipes. Due to this leakage, the ceiling bars (SIC) are visible and plaster has pealed of.
(d) The doors and windows of the suit property are broken.
(e) Electricity and sanitary fittings of the suit property are broken and disconnected.
(f) Balcony and sunshade on the Eastern side of the suit property are also damaged. The floor of the suit property is damaged resulting into seepage of rain water into the lower portion of the building. It may also fall at any time (SIC).
1.6 Notice dated 10.08.2005 calling upon the defendants to repair the suit property was sent. In this regard, reply dated 25.08.2005 was received by the plaintiff from the defendants. Plaintiff sent rejoinder dated 14.09.2005.
1.7 Defendants are habitual defaulters in making payment of rent. Defendants are using the suit property as a godown, in clear violation of the rent agreement. Another notice dated 25.08.2007 was also served upon the defendants. On 23.07.2005, the suit property was got inspected by the plaintiff through M/s Chawla & Associates, Architect & Valuers. In this regard, a detailed inspection report alongwith photographs were prepared. The same are annexed with the plaint.
Suit No. 7308/16 Page..... 4/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors. 1.8 Plaintiff has learnt that the defendants are going to sublet the
suit property. Eviction petition filed by the plaintiff against the defendants is also pending.
2. DEFENDANTS' CASE: 2.1 Joint written statement filed by both the defendants. 2.2 It is stated that plaintiff has already filed an eviction petition on the basis of inspection report carried out on 23.07.2005. As such, the suit is liable to be stayed under Section 10 of CPC.
2.3 Plaintiff has thrown debris on the terrace of the suit property and he is responsible for cause damage to the suit property. In order to cause annoyance to the defendants, plaintiff plugs the outlet of rainwater leading from unit no.3 i.e. the suit property to the terrace of unit no.2.
2.4 The suit property was let out to father of defendant no.1 in the year 1960. Prior to that, the suit property was let out to some other tenant from June 1948 to August 1960. Fresh rent agreement was executed between the plaintiff and defendants in August 1981. Suit property is in the same condition as it was let out by the plaintiff to the defendants. In the rent note dated 27.08.1981, it is clearly mentioned that the suit property was let out for residential cum commercial use/ purposes. The other three flats bearing units no. 1,2 & 4 on the third floor of the said property are being used as godown, whereas the tenanted premises is purely used as accounts office of M/s Rohit Suit No. 7308/16 Page..... 5/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
Electricals, a proprietorship concern of defendant no.1.
2.5 It is the plaintiff, who has been instrumental in getting the electricity and water connections disconnected; with a view to force the defendants to vacate the suit property. Plaintiff has secured possession from the tenants residing in units no. 1,2 & 4 of the said property. Now, the plaintiff is using those units for storing the imported Chinese goods. Liability to pay house tax of the suit property is upon the plaintiff.
2.6 The wooden cabins similar to one mentioned in the plaint also exist in units no. 1,2 & 4 of the third floor of the said property. The wooden cabin is properly fixed and secured. While remodeling unit no.4 of the third floor of the said property, plaintiff threw debris on the terrace of unit no. 3 i.e. the suit property. The wooden planks lying in the said wooden cabin have become old but would not fall unless deliberately pulled out.
2.7 The said property is 60 years old and the same is not being maintained by the plaintiff. Plaintiff also does not allow the defendants to carry out any repair in the suit property. Defendants are seriously effected by leakage of water. The condition of other three units i.e. units no. 1,2 & 4 are almost same that of unit no. 3 i.e .the suit property.
2.8 The duty is of the landlord i.e. the plaintiff in the present case to keep the said property including the suit property in good repairs, but Suit No. 7308/16 Page..... 6/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
in the present case, plaintiff has damaged his own property in order to cause annoyance to the defendants.
2.9 The inspection report dated 23.07.2005 was prepared at the instructions and request of the plaintiff. The facts mentioned in the report are based upon the information supplied by the plaintiff. In the said report, it has been mischievously mentioned that the damage to the suit property has been caused by the tenants i.e. the present defendants.
2.10 Plaintiff has never carried out any repairs in the tenanted premises nor he has allowed the defendants to carry any repairs therein.
2.11 When the defendants wanted to keep the tenanted premises in good repairs, plaintiff objected to the same.
2.12 Defendants have admitted the receipt of notice dated 10.08.2005 and rejoinder dated 14.09.2005. It is stated that replies were sent to the notice as well as to the rejoinder. Defendants also sent reply to the notice dated 25.08.2007.
2.13 At no point of time, defendants had any intention to sublet the suit property.
3. REPLICATION: In replication, all the averments made in the plaint were reiterated & reaffirmed and contentions of the defendants Suit No. 7308/16 Page..... 7/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
were denied by the plaintiff.
4. ISSUES: Vide order dated 31.10.2008, Ld. Predecessor framed the following issues:
1. Whether the plaintiff is entitled to the equitable relief of permanent injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to the equitable relief of mandatory injunction, as prayed for? OPP
3. Relief.
5. PLAINTIFF'S EVIDENCE: 5.1 Plaintiff examined Sh. Nand Lal, Assistant, Gd.III, BMDCCK, BSES, BYPL, Town Hall, Chandni Chowk, Delhi, as PW1. He brought the summoned record in respect of connection bearing K.No. 411100239673D (New K.No. 111014450312). He placed on record the copy of site inspection report Ex. PW1/A (OSR), copy of installation test notice Ex.PW1/B (OSR), copy of Meter Reading Booksheet MarkA, and computer generated copy of last bill raised Ex. PW1/C. 5.2 Plaintiff examined Sh. Ved Prakash, UDC, Zonal Revenue Office (Water), DJB, Kashmere Gate, Delhi as PW2. He brought the water meter diary for the period from 08.01.2007 to 03.08.2009. Copy of the same is Ex.PW2/1 (OSR). He also brought the billing summary from 24.04.1998 to 28.07.2009 in respect of connection no. 31624, H.No. 1567, area code 107/A7, copy of which is Ex.PW2/2 (colly) (OSR). He deposed that the said meter was disconnected on 30.04.2002 on account Suit No. 7308/16 Page..... 8/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
of nonpayment of outstanding bill for Rs.6,330/.
5.3 Plaintiff Sh. Harsh Kumar Aggarwal examined himself as PW3. He tendered his evidence by way of affidavit Ex. P3. He relied upon the following documents:
(i) Site plan Ex.PW3/1;
(ii) Rent note Ex. PW3/2;
(iii) Report of Architect Ex. PW3/3;
(iv) Copy of notice dated 10.08.2005, its postal receipts and
acknowledgement card Ex.PW3/4 (colly);
(v) Copy of reply dated 25.08.2005, rejoinder dated 14.09.2005, postal
receipts and acknowledgement card Ex. PW3/5 (colly);
(vi) Notice dated 25.08.2007, postal receipt and UPC Ex.PW3/6 (colly);
(vii) Detailed inspection report of the Architect alongwith photographs Ex. PW3/7.
5.4 Plaintiff examined Sh. Naveen Saini, Assistant Ahlmad in the court of Ld. CCJ/ARC, Central, THC, as PW4. He brought the summoned record i.e. the file bearing E. No. 107/2008 titled as Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors. He deposed that the notices alongwith copies of registered AD receipts, UPC, receipts and acknowledgement receipts, which are already Ex. PW1/4, PW3/6 and PW3/5 are correct as per record brought by him.
5.5 Plaintiff examined Sh. M.S. Chawla (the architect, who prepared the inspection report dated 23.07.2005) as PW5. His report Suit No. 7308/16 Page..... 9/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
is Ex. PW5/1.
5.6 All the witnesses except PW5 were duly crossexamined on behalf of the defendants. PW5 appeared on 24.09.2015 but his crossexamination was deferred at the request of defendants. Upon perusal of the ordersheets, there is nothing to suggest that any request was made for recalling of PW5 for his crossexamination.
5.7 Vide statement dated 28.03.2016, PE was closed by the plaintiff.
6. DEFENDANTS' EVIDENCE:
6.1 Defendant no.2 Sh. Rohit Kapoor examined himself, as DW1. He tendered his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents:
(i) Rent note dated 27.08.1981 Ex.DW1/1 (the same is also Ex. PW3/2);
(ii) Reply dated 25.08.2005 to the notice dated 10.08.2005 Ex. DW1/2;
(iii) Reply dated 03.10.2005 to the rejoinder dated 14.09.2005 Ex. DW1/3.
6.2 DW1 was duly crossexamined by Ld. Counsel for the plaintiff.
6.3 Vide statement dated 20.11.2017, DE was closed by Ld. Suit No. 7308/16 Page..... 10/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors. Counsel for the defendants. 7. ARGUMENTS OF THE PARTIES: 7.1 Arguments heard. 7.2 It was submitted on behalf of the plaintiff that there is no
issue regarding the existence of wooden cabin. Only objection is with regard to the condition of the said wooden cabin. It was argued that plaintiff can file an eviction petition on the ground as mentioned in the plaint but if the plaintiff/landlord does not want to evict a tenant and only seeks injunction to prevent the said act, in such case, plaintiff has to file a suit for injunction only. So far, the defendants have not sublet the suit property. Defendants have misused the suit property in violation of clause3 of the rent note Ex. PW3/2. The photographs of the wooden cabin are Ex. PW3/3. Clause no. 5 and 6 of the rent note Ex. PW3/2 put the duty of maintenance of the suit property upon the defendants/tenants. Vide notice Ex. PW1/4, defendants were asked to repair the suit property. Specific court query was put to the plaintiff as to what damage the said misused has caused to the suit property. It was answered that the said damage is mentioned in the report of Architect (PW5). Plaintiff was asked by the court whether he has ever tried to get the suit property repaired. No answer came. Plaintiff was asked as to whose primary duty is to maintain the suit property/tenanted premises. In this regard, plaintiff relied upon the judgment reported as Merwanji Nanabhoy Machant (Dead) through LR Vs. Union of India (UOI) & Suit No. 7308/16 Page..... 11/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
Ors, Civil Appeal No. 2449/1968 decided on 20.02.1979, AIR 1979 SC 1309, (1979) 4SCC 734.
7.3 Written submissions filed by the plaintiff perused.
7.4 It was submitted on behalf of the defendants that duty is upon the landlord i.e. the plaintiff in this case to maintain the suit property i.e. the tenanted premises.
7.5 Written submissions filed by the defendants perused. It is stated that as per Section 44 of the DRC Act, the landlord is bound to keep the tenanted premises in good and tenantable repairs. Suit property was let out for residential as well as commercial purposes. During cross examination, PW3 admitted that he has never carried out any maintenance in the suit property and the defendants themselves have been carrying out the maintenance at their own cost. He has also admitted that the tenanted premises was let out for residential cum commercial purpose. Plaintiff is trying to take advantage of his own wrong. The present tenancy is governed by the DRC Act, as such primary duty is upon the landlord to maintain the premises in terms of provisions of DRC Act.
8. COURT'S FINDINGS AND REASONING: Now, my issue wise findings are as under: Suit No. 7308/16 Page..... 12/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
8.1 ISSUE NO.1: Whether the plaintiff is entitled to the equitable relief of permanent injunction, as prayed for? OPP The onus to prove this issue is upon the plaintiff. 8.2 Permanent injunction sought by the plaintiff is multifold. Plaintiff has prayed for restraining the defendants and persons claiming through them from :
(a) misusing the suit property. It is alleged that defendants are using the suit property as a godown for storage of goods resulting in damage to the suit property. This is in violation of rent note Ex. PW3/2.
(b) subletting the suit property.
(c) ''further damaging the suit property''.
8.2(a) (i) The terms and conditions of the tenancy as well as purpose of the tenancy in the present case is controlled and governed by the rent note Ex. PW3/2. This rent note is not disputed and is admitted by both the parties. Ld. Counsel for the plaintiff relied upon clause3 of this rent note. Wherein it is specifically mentioned that premises shall be used for residential cum commercial purposes but not for storage causing damage to the property. In this regard, Ld. Counsel for the defendants argued that in this rent note itself, it is mentioned that the suit property can be used for residential cum commercial purposes. Plaintiff has not alleged any other misuse of the suit property/tenanted premises. It is to be seen what evidence the plaintiff has produced regarding the suit property being used as a godown and further the use of suit property as a godown causing Suit No. 7308/16 Page..... 13/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
damage to the suit property.
8.2(a) (ii) PW1 and PW2 examined by the plaintiff are concerned with electricity and water meters respectively, their readings and arrears of their bills at the suit property. PW4 produced records regarding eviction petition no. 107/08 titled as Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors, filed by the present plaintiff. PW1, PW2 and PW4 are formal witnesses. They only produced records. PW3 i.e. the plaintiff himself and PW5, the said Architect, who inspected the premises, are material witnesses. Ex. P3 i.e. the affidavit of evidence of PW3/plaintiff is a mere reproduction of the plaint. In his examinationinchief, PW3 has relied upon Ex.PW3/1 to Ex.PW3/7 (colly). Ex. PW3/1 is the site plan. Ex.PW3/2 is the rent note dated 27.08.1981, Ex. PW3/3 is report prepared by the Architect, PW3/4 and Ex. PW3/5 are notices sent by the plaintiff and the replies received therein. PW3/6 is also concerned with the notice dated 25.08.2007. PW3/7 is the report of the Architect alongwith photographs. Out of these Ex. PW3/1 and PW3/6 do not speak anything about the said misuse resulting in the causing of damage. The report and photographs Ex.PW3/7 shall be scrutinized to see whether they prove any misuse of the suit property and resulting in damage. In the photographs Ex. PW3/7, the condition of the suit property is visible. It can be seen that the suit property is not in good maintenance. However, there is no material to indicate any storage of goods to show that the suit property is being used as a godown.
Suit No. 7308/16 Page..... 14/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors. 8.2(a) (iii) As already observed above, PW5 was recalled for cross
examination. However, defendants could not examine PW5. Thereafter, there was no request for recalling PW5. The inspection report of the Architect is Ex. PW3/7. In this report, on unnumbered page2 in para5 the said architect has enumerated the damages observed. There is no mention of storage of any goods and use of the suit property as a godown. Plaintiff has failed to show that the suit property is being used as a godown in violation of clause3 of the rent note Ex. PW3/2 and any damage is caused to the suit property by such misuse.
8.2(b) (i) Plaintiff has sought permanent injunction restraining the defendants and the persons claiming through them from subletting the suit property.
8.2(b) (ii) In the written statement, in para11 of reply on merits, it is clearly stated that at no point of time, defendants have the intention to sublet the tenanted premises. Defendants wish to retain the tenanted premises. As such, they cannot afford to infringe any of the terms of the tenancy. Accordingly, in view of the admission of the defendants, it is clear that defendants do not intend to sublet the tenanted premises.
8.2(c) (i) Plaintiff has sought permanent injunction restraining the defendants from causing ''further damage to the suit property''. This issue is not contentious as defendants being tenants are duty bound not to damage the suit property in any manner whatsoever. The contentions Suit No. 7308/16 Page..... 15/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
issue is whether so far the defendants have caused any damage to the suit property, particularly in violation of the rent note Ex. PW3/2 and also in violation of any of their statuary duties. The issue regarding damage (if any) caused by the defendants to the suit property will be dealt with in issue no.2, which is regarding mandatory injunction directing the defendants to restore the suit property in habitable condition. As already observed above, defendants being tenants are duty bound not to damage the suit property in violation of rent note and also their statuary duties.
8.2(c) (ii) In view of the above, plaintiff has failed to show that defendants have used the suit property as a godown. No other misuse of the suit property is alleged. So far as commercial use of the suit property is concerned, the same is allowed as per rent note Ex. PW3/2.
8.3 Issue no.1 is partly decided in favour of the plaintiff and against the defendants.
8.4 Defendants and persons claiming through them are permanently restrained form sub letting the suit property or causing ''any further damage'' to the suit property in violation of rent note Ex. PW3/2 and any of their statuary duties. Plaintiff has failed to show that defendants have misused the suit property as a godown for storage of goods in violation of rent note Ex. PW3/2 and also failed to show that such alleged misuse of the suit property has caused any damage to the suit property.
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9. ISSUE NO.2: Whether the plaintiff is entitled to the equitable relief of mandatory injunction, as prayed for? OPP The onus to prove this issue is upon the plaintiff.
9.1 The relief of mandatory injunction sought by the plaintiff is also multifold.
(a) Plaintiff has sought mandatory injunction directing the defendants to repair and restore the suit property to habitable condition.
(b) mandatory injunction directing the defendants to clear the arrears of electricity and water connections at the suit property and get restored the electricity and water connections at the suit property.
9.1 (a)(i) It is the admitted case of the plaintiff that he has filed eviction petition under the DRC Act against the defendants. This implies that tenancy is covered by DRC Act. As such, duty to repair the suit property/tenanted premises shall be governed by the provision of the DRC Act. Section 44 of the DRC Act provides that 'every landlord shall be bound to keep the premises in good and tenantable repairs'. Primary duty is upon the landlord to keep the tenanted premises in good and tenantable repairs. In his crossexamination, plaintiff/PW3 has admitted that he has never carried out any repair of the tenanted premises i.e. the suit property. Ld. Counsel for the plaintiff relied upon the judgment Merwanji Nanabhoy Machant (supra). In this judgment, it was held that there was a covenant on part of the tenant that he will keep the premises in good condition. The landlord filed the eviction petition alleging breach Suit No. 7308/16 Page..... 17/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
of this condition/covenant. Landlord was held entitled to seek eviction on this ground. In the present case, plaintiff/landlord is not seeking eviction of the defendants/tenants. Further, this judgment talks about interpretation of the contract between the landlord and tenant. In the present case, this contract is rent note Ex. PW3/2. In clause5 of this rent note, it is mentioned that tenants (present defendants) shall carry out the annual whitewash and painting of doors etc. at their own costs. The plain and simple language of clause5 goes to show that white wash and painting would be got done by the defendants at their own cost. By no stretch of interpretation, it can be concluded that such white wash and painting etc. of doors would include the substantial maintenance of the suit property/tenanted premises. As such, defendants cannot be directed to get repaired the suit property/tenanted premises.
9.1 (b) (i) Plaintiff has sought mandatory injunction directing the defendants to clear the electricity and water arrears of the suit property. PW1 produced record about electricity connection at the suit property. Copy of Meter Reading Booksheet is MarkA. Copy of last bill raised is Ex. PW1/C. As per Ex. PW1/C, the bill is for an amount of Rs. 27,760/. This bill is for the month of July 2009. In this bill, the current demand is Rs.10,805.28 paise and the arrears are Rs.16,964.08 paise. However, this bill is for the address 30 Harsh Vihar, Malka Ganj Road, Malka Ganj, Delhi 110006. Whereas the suit property is stated to be situated in Block 3, Ishwar Niwas, Bhagirath Palace, Chandni Chowk, Delhi110006. This bill is in the name of Ms. Bhagwati Devi. Plaintiff has not clarified Suit No. 7308/16 Page..... 18/21 Harsh Kumar Aggarwal Vs. Swaran Kapoor & Ors.
whether the electricity meter at the suit property is in the name of Ms. Bhagwati Devi. Installation Test Notice Ex. PW1/B mentions the address of the premises concerned as house no. 1567, Ishwar Niwas. The site inspection report Ex. PW1/A mentions the address : 1567, Ishwar Niwas, Bhagirath Palace. In this report, K. number is mentioned as 111014450312. The bill Ex.PW1/C also bears this K. number. This implies that the bill Ex. PW1/C is with regard to the connection obtained at house no. 1567, Ishwar Niwas, Bhagirath Palace. Six sheets of papers (computer generated printouts) regarding K. No.111014450312 are also annexed with Ex. PW1/A. On the last sheet, in the bill for the month of July 2009, the current demand is shown as 10308.90 paise. This roughly corresponds to the arrears of Rs.10308.80 paise as mentioned in the bill Ex. PW1/C. There is no other evidence regarding any arrears of electricity bill. Plaintiff has not produced any specific evidence to show that electricity connection at the suit property was disconnected; that too due to the nonpayment of arrears. In the written statement, defendants have admitted that electricity and water connections at the suit property were disconnected but they alleged that it is the plaintiff who was instrumental in this disconnection at the suit property. There is no evidence to show that electricity connection at the suit property was disconnected due to nonpayment of arrears. Further, plaintiff has the choice to make payment on behalf of the defendants and seek recovery of the same. Without payment of proper court fee, plaintiff is indirectly seeking recovery.
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9.1(b) (ii) Plaintiff examined PW2 regarding water connection at the suit property. In his examinationinchief, PW2 stated that the said connection was disconnected on 30.04.2002 vide order no. 85718 on account of nonpayment of Rs. 6,330/. During crossexamination, PW2 stated that only one water meter was installed in the said premises. It is the admitted case of the parties that there are more than one units in the said property. In such circumstances, the entire arrears of water bill cannot be attributed to the defendants. Plaintiff has failed to show that defendants are solely responsible for nonpayment and resulting in disconnection of water meter at the suit property. Further, as already observed, plaintiff can pay the said bill and seeking recovery of the same from the defendants after paying proper court fee.
9.2 In view of the above, issue no.2 is decided in favour of the defendants and against the plaintiff.
10. RELIEF: 10.1 Defendants and persons claiming through them are permanently restrained form sub letting the suit property and from causing any 'damage' to the suit property in violation of rent note Ex.PW3/2 and/or any of their statuary duties.
11. Suit of the plaintiff is partly decreed in the above terms.
12. No order as to cost.
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13. Decree sheet be prepared accordingly
14. File be consigned to record room after due compliance.
Digitally signed by RAJINDER RAJINDER SINGH
SINGH Date: 2018.08.02
15:03:01 +0530
PRONOUNCED IN THE OPEN (RAJINDER SINGH)
COURT ON 27.07.2018 SCJ/RC(WEST)/ DELHI.
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