Delhi District Court
Sh. Surender Nath vs Roopinder Kumar on 16 September, 2014
IN THE COURT OF NAVEEN GUPTA, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI
Suit No. 32/14
Sh. Surender Nath,
S/o Late Sh. Banarsi Dass,
R/o C109, Shakti Nagar Extension,
Delhi110052. .... Plaintiff
Versus
Roopinder Kumar,
S/o Sh. Radha Krishan,
R/o C109, Ground Floor, Back Portion,
Shakti Nagar Extension, Delhi110052. ......Defendant
Date of Institution: 16.01.2014
Date on which judgment was reserved: 01.09.2014
Date of pronouncing judgment: 16.09.2014
JUDGMENT
1. The present suit has been filed by the plaintiff for recovery of possession of back portion at ground floor no. C109, Shakti Nagar Ext., Delhi110052 consisting of one bathroom, one room with covered gallery (in common use of both parties) (hereinafter referred as 'suit property/tenanted premises'), for recovery of Rs. 4000/ towards the arrears of rent for the month of January 2014 and for mesne profits alongwith interest.
Suit No. 32/14 Surender Nath v. Roopinder Kumar 1/15
2. Brief facts of the case of the plaintiff are that he is owner and landlord of property bearing no. C109, Shakti Nagar Ext., Delhi110052 . He inducted the defendant as tenant over the suit property. A rent agreement was executed between them for a period of 11 months with effect from 01.02.2010 to 31.12.2010 at monthly rent of Rs. 2600/ excluding electricity, water, service and maintenance charges. Subsequently, the tenancy was renewed at a monthly rent of Rs. 3200/ excluding electricity and water charges and the same commenced from 01.02.2011. A rent agreement was executed between the parties and the same expired on 31.12.2011. After expiry of the rent agreement, the defendant requested for renewal of rent agreement for another period of 11 months. But, the tenancy was not renewed by the plaintiff. However, the rent was increased to Rs. 4000/ per month excluding electricity and water charges as defendant required the premises for some more time to find out another suitable premises for his residential purpose. Accordingly, tenancy of defendant became month to month basis. Further, on 18.11.2013, the defendant made payment of rent and electricity and water charges through a cheque of Rs. 7450/ i.e. Rs. 4000/ towards rent of November 2013 and Rs. 3450/ towards electricity and water charges. Further, on 10.12.2013, he made payment of rent for the month of December 2013 through cheque of Rs. 4000/. Subsequently, plaintiff required the suit property for his personal purpose and further, the premises may fetch rent more than Rs. 10,000/ per month in the vicinity. Hence, plaintiff issued a legal notice dated 30.12.2013 upon the defendant terminating the tenancy and asked him to vacate and handover possession of Suit No. 32/14 Surender Nath v. Roopinder Kumar 2/15 the suit property to him. The defendant sent a false and frivolous reply dated 04.01.2014 to the said notice. He failed to handover the possession of the suit property. Hence, the plaintiff has filed the present suit.
3. In his written statement, the defendant has raised preliminary objection that the present suit is barred under Section 50 of the Delhi Rent Control Act, 1958 as the rate of rent of the tenanted premises is Rs. 3200/ per month excluding electricity and water charges. He has replied on merits stating that after expiry of the rent agreement on 31.12.2011, the plaintiff agreed to let out the tenanted premises to the defendant for further period of 5 years with effect from 01.01.2012 at the same rate of rent i.e. Rs. 3200/, subject to increase of rent at the rate of 10% after 3 years i.e. from 01.01.2015. The above said was settled in an oral agreement between the plaintiff and defendant. Further, the defendant was regularly paying the rent at the rate of Rs. 3200/ per month to the plaintiff. He has further denied all other allegations/claims made by plaintiff in his plaint.
4. On the basis of the pleadings of the parties, following issues were framed by the Court vide order dated 18.03.2014:
1. Whether the suit is barred by Section 50 of the Delhi Rent Control Act? (OPD)
2. Whether the plaintiff is entitled to decree of possession of the suit property, as prayed? (OPP) Suit No. 32/14 Surender Nath v. Roopinder Kumar 3/15
3. Whether the plaintiff is entitled to recovery of arrears of rent, as prayed? (OPP)
4. Whether the plaintiff is entitled to damages/mesne profits alongwith interest, as prayed? If yes, at what rate and for what period? (OPP)
5. Relief.
5. To prove his claim, the plaintiff examined one witness. PW1 is the plaintiff himself. He has submitted almost on the similar lines as stated by him in his plaint. He tendered cheque dated 18.11.2013 of Rs. 7450/ as Ex. PW1/1, cheque dated 10.12.2013 of Rs. 4000/ as Ex. PW1/2, copy of his pass book as mark A, electricity bills dated 30.10.2013 and 11.12.2013 as Ex. PW1/4 (Colly), legal notice dated 30.12.2013 sent by the plaintiff to the defendant as Ex. PW1/5 and reply dated 04.01.2014 of the defendant to the said notice as Ex. PW1/6. Thereafter, he closed his evidence.
6. To prove his defence, the defendant examined one witness. DW1 is the defendant himself. He has submitted almost on the similar lines as stated by him in his written statement. He tendered his reply as Ex. DW1/A, postal receipt as Ex. DW1/B and postal money order dated 08.02.2014 as Ex. DW1/C. During his crossexamination, the plaintiff put some documents to him. Copy of suit alongwith documents filed by the defendant against the plaintiff herein for decree of permanent and mandatory injunction as Ex. DW1/DA, legal notice dated 14.04.2014 of plaintiff sent to defendant in respect of payment of electricity and water charges as Ex. DW1/DB, reply Suit No. 32/14 Surender Nath v. Roopinder Kumar 4/15 dated 24.04.2014 of defendant to the above said notice as Ex. DW1/DC, order dated 17.05.2014 passed by the Court in the above said suit filed by the defendant against the plaintiff as Ex. DW1/DD, receipt issued by the plaintiff dated 31.05.2014 for an amount of Rs. 12,800/ towards payment of rent as Ex. DW1/DE and office copy of legal notice dated 21.07.2014 of the plaintiff sent to defendant as Ex. DW1/DF. Thereafter, he closed his defence evidence.
7. I have heard the respective counsels for plaintiff and defendant. I have perused the record.
8. Issuewise findings are as follows:
Issue no. 1 The plaintiff has claimed that present rate of rent for the tenanted premises is Rs. 4000/ per month excluding electricity and water charges. As per claim of the plaintiff, during the tenancy period of 11 months from 01.02.2010 to 31.12.2010, monthly rate of rent of the tenanted premises was Rs. 2600/ excluding other charges. Thereafter, during further extension of the tenancy from 01.02.2011 to 31.12.2011, rate of rent was Rs. 3200/ per month excluding other charges. Further, after expiry of the tenancy on 31.12.2011, the same was not renewed by the plaintiff. But, the rent was increased to Rs. 4000/ per month excluding electricity and water charges.
On the contrary, the defendant has claimed the rate of rent as Rs. 3200/ per Suit No. 32/14 Surender Nath v. Roopinder Kumar 5/15 month. He has further stated that vide an oral agreement, the tenancy was extended for a further period of 5 years with effect from 01.01.2012 on the same rate of rent i.e. Rs. 3200/ per month.
9. Firstly, the argument of the defendant that tenancy was extended for further 5 years with effect from 01.01.2012 could not be accepted. Since as per Section 107 of the Transfer of the Property Act, a lease of immovable property for any term exceeding one year can be made only by a registered instrument. But, the defendant has failed to place any such registered instrument on record, whereby the suit property has been let to the defendant by the plaintiff for 5 years. In these circumstances, the impugned tenancy would be considered as a month to month basis tenancy.
10.The defendant has claimed that at the time of renewal of the tenancy with effect from 01.01.2012, rate of rent was kept the same as Rs. 3200/ per month. The defendant has not disputed the rate of monthly rent for the tenanted premises during the year 2010 as Rs. 2600/ and in the year 2011 as Rs. 3200/ excluding other charges. It is beyond comprehension that when the rate of rent had been increased from Rs. 2600/ per month to Rs. 3200/ per month while renewal of the tenancy on 01.02.2011, then why the rate of monthly rent would not be revised at the time of extension of the tenancy (as claimed by the defendant although disputed by the plaintiff). It is pertinent to note that plaintiff has claimed that the tenancy was not renewed by him after expiry of rent agreement [on 31.12.2011].
Suit No. 32/14 Surender Nath v. Roopinder Kumar 6/15
11. Now, the plaintiff has produced two cheques to substantiate his claim of rate of rent for tenanted premises as Rs. 4000/ per month. The plaintiff has stated that on 18.11.2013, the defendant made payment of Rs. 7450/ through cheque Ex. PW1/1 which includes rent of Rs. 4000/ for the month of November 2013 and Rs. 3450/ as electricity and water charges. Further, the defendant issued a cheque Ex. PW1/2 for payment of rent of Rs. 4000/ for the month of December 2013. During his crossexamination, PW1 remained unmoved from his version made in examination in chief. On the contrary, the defendant has stated that the above said two cheques pertained to rent of Rs. 3200/ in respect of month of November and December, 2013 and balance amount was for water and electricity charges. The plaintiff has placed two electricity bills on record. The electricity bill generated on 30.10.2013 was payable by 18.11.2013 and the amount payable was Rs. 4380/. Another bill dated 11.12.2013 was payable by 30.12.2013 and the amount payable was Rs. 3410/. The counsel for plaintiff has argued that at the time of issuance of the cheque Ex. PW1/2, the electricity bill dated 11.12.2013 was yet to be generated by the service provider (NDPL). Moreover, when the electricity charges for electricity bill generated on 30.10.2013 had already been paid through cheque Ex. PW1/1; then in no circumstances, the cheque amount of Rs. 4000/ i.e. Ex. PW1/2 could have included electricity charges of Rs. 800/ in it. Further, the plaintiff has issued a legal notice Ex. DW1/DB to the defendant; whereby, interalia, the plaintiff has demanded payment of electricity charges for the period from 10.12.2013 to 23.01.2014 and in its reply Ex. DW1/DC, the defendant has Suit No. 32/14 Surender Nath v. Roopinder Kumar 7/15 stated that he had paid Rs. 3500/ in cash towards electricity charges for the period from 10.12.2013 to 23.01.2014. He has further argued that the above said reply clearly shows that in the cheque amount of Rs. 4000/ issued on 10.12.2013 by the defendant, there could not be any inclusion of electricity charges.
12.During his crossexamination, DW1 stated that presently, the landlord was charging the electricity charges at monthly basis. He paid electricity charges once in the month. He did not remember the units consumed by him in the month of November 2013 to June 2014. If the above said version of DW1 is considered alongwith the cheques Ex. PW1/1 and PW1/2, legal notice Ex. DW1/DB, reply of the defendant Ex. DW1/DC alongwith the electricity bills Ex. PW1/4; it can be inferred that the defendant made payment of rent as well as electricity and/or other charges through cheque Ex. PW1/1 for the month of November 2013. The defendant has not explained as to in what manner, the cheque Ex. PW1/1 included Rs. 4250/ (instead of Rs. 3450/ as claimed by the plaintiff) towards the electricity and water charges which were due upon him. The electricity bill generated on 30.10.2013 was for Rs. 4380/. It is not comprehensible that the defendant was supposed to pay almost whole amount i.e. Rs. 4250/ of the said electricity bill to the plaintiff. The cheque Ex. PW1/1 could not have included the water charges as well since in its reply dated 24.04.2014 to legal notice Ex. DW1/DC, it has been stated that water charges from September 2013 to February 2014 were paid in cash. Further, after payment of electricity charges for the Suit No. 32/14 Surender Nath v. Roopinder Kumar 8/15 month of November 2013 till issuance of cheque Ex. PW1/2 on 10.12.2013, no electricity bill had been generated by the service provider. Further, admittedly, for the electricity charges for the month of December 2013 onwards, the defendant had made payment to the plaintiff in cash. Hence, the defendant has not been able to prove as to in what manner, the cheque amount of Rs. 4000/ issued on 10.12.2013 included electricity and water charges of Rs. 800/ too in it. Hence, the plaintiff has proved that present rate of rent for the tenanted premises is Rs. 4000/ per month.
13.The plaintiff has relied upon two precedents Lalit Madhan v. Pramod Kalra, 2014 III AD (Delhi) 323 and Sewa International Fashions v. Suman Kathpalia, AIR 2000 Delhi 69. He has argued that since the electricity charges were to be payable by the defendant to the landlord/plaintiff, hence, the same should be included in the expression of 'rent'. With utmost respect, the Court is of the view that the precedents relied upon by counsel for the plaintiff are not applicable in the present facts and circumstances of the case. It has been held in the above two cases that the terms 'rent' is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation of its appurtenances but also of furnishing, electric institutions and other amenities agreed between the parties to be provided by and at the cost of the landlord. But, the electricity supply for which electricity charges were payable by the defendant to the plaintiff herein has not been provided by and Suit No. 32/14 Surender Nath v. Roopinder Kumar 9/15 at the cost of the plaintiff/landlord. Hence, the electricity charges paid by the defendant to the landlord can not be said to be included in the expression of 'rent'.
14. However, the plaintiff has otherwise proved that present rate of rent for the tenanted premises is Rs. 4000/ per month. Accordingly, the present suit is not barred by Section 50 of the Delhi Rent Control Act. Issue no. 1 is decided against the defendant and in favour of the plaintiff.
15.Issue no. 2:
The defendant has raised an objection that the plaintiff is merely coowner of the tenanted premises. Hence, he only can not ask for eviction of the defendant from the tenanted premises. Counsel for the plaintiff has argued that defendant/tenant had been tendering rent to the plaintiff. Hence, he can not be allowed to raise this objection at this stage. From the cross examination of PW1, it is clear that he was a coowner of the suit property. However, it is trite law that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the coowners. The Apex Court in M/s. India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (D) by Lrs., AIR 2004 SC 1321, has held that:
6. [I]t is well settled that one of the co owners can file a suit for eviction of a tenant in the property generally owned by the coowners. (See: Sri Ram Pasricha v. Jagannath and others, 1976 R.C.R.(Rent) 832 : 1976(4) SCC 184; Dhannalal v.
Kalawatibai and others, 2002(6) SCC 16 : 2002(2) RCR(Rent) Suit No. 32/14 Surender Nath v. Roopinder Kumar 10/15 126 (SC). This principle is based on the doctrine of agency. One coowner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.
16.However, with utmost respect, the Court is of the view that the precedent relied upon by counsel for the plaintiff i.e. C. Chandramohan v. Sengottaiyan (dead) by LRs., AIR 2000 SC 568 is not applicable on the above said aspect in the present facts and circumstances of the case.
17. It has already been observed that the impugned tenancy is a month to month basis tenancy. Hence, the same could be terminated by following the provisions of Section 106 of the Transfer of the Property Act. The defendant has not disputed the issuance of legal notice Ex. PW1/5 sent by the plaintiff whereby the plaintiff has asked the defendant to handover the vacant possession of the tenanted premises. Furthermore, counsel for the plaintiff has relied upon the precedent Jeevan Diesels & Electricals Ltd. v. M/s Jasbir Singh Chadha (HUF), 183 (2011) DLT 712, wherein it has been held that suit plaint itself can be taken as notice terminating tenancy.
18.Accordingly, all the three essential ingredients i.e. jural relationship of landlord and tenant between plaintiff and defendant, agreed rate of rent beyond the limit of the Delhi Rent Control Act and termination of tenancy Suit No. 32/14 Surender Nath v. Roopinder Kumar 11/15 by service of notice under Section 106 of the Transfer of the Property Act have been fulfilled in the present case. Hence, the plaintiff is entitled to decree of possession of the suit property. The defendant is directed to handover vacant possession of the suit property to the plaintiff. Issue no. 2 is decided in favour of the plaintiff.
19.Issues no. 3 and 4:
Plaintiff has claimed that defendant has not paid rent for the month of January, 2014. The defendant has not challenged the said version of the plaintiff during his crossexamination. Hence, the plaintiff is entitled to recover amount of Rs. 4000/ as arrears of rent for the month of January, 2014.
20.The plaintiff has claimed mesne profits at the rate of Rs. 10,000/ per month for wrongful and unauthorized use and occupation of the tenanted premises from 15.01.2014 till handing over the possession of the same. Firstly, the plaintiff has already claimed arrears of rent for the month January, 2014. Hence, he cannot claim rent as well as mesne profits for the same period. Hence, no mesne profits would be awarded to the plaintiff for period of 15.01.2014 till 31.01.2014. As per text of legal notice Ex. PW1/5, the plaintiff terminated the tenancy with effect from 15.01.2014. The defendant did not vacate the same despite termination of tenancy. Hence, the defendant would be said to be in unauthorized possession over the suit property since Suit No. 32/14 Surender Nath v. Roopinder Kumar 12/15 15.01.2014. Now, it is to be examined as to at what rate, mesne profits shall be awarded to the plaintiff. The plaintiff has claimed mesne profits at the rate 10,000/ per month. He should have produced the evidence to prove that Rs. 10,000/ per month would have been reasonable compensation for his depreviation of the possession of the suit property from the defendant, but he did not produce any evidence on this aspect. Rather during his cross examination, PW1/plaintiff deposed that the rent of the premises in which the defendant was residing was approximately Rs. 6,000/. The above said version of PW1 is in contradiction with his averments made in the plaint in respect of mesne profits at the rate of Rs. 10,000/. Accordingly, the plaintiff could not produce any consistent and cogent evidence for reasonable rate of compensation. The plaintiff did not ask the Court to initiate enquiry in respect of the rate of compensation to be provided to him by defendant for unauthorized occupation of the suit property. The Apex Court in Ganapati Madhav Sawant (dead) Through his Lrs. v. Dattur Madhav Sawant, 2008 (2) RCR (Civil) 175, has held that:
7. The High Court while deciding the Second Appeal, failed to notice that while issuing notice it was categorically noted that the plaintiff had not prayed for an inquiry relating to mesne profit in terms of Order XX Rule 12 CPC and in the absence of any specific prayer for any inquiry into that aspect, the same could not have been granted.
21. However, the Court takes notice of the fact that in the year 2010, the defendant made payment of monthly rent at the rate of Rs. 2600/ and in the Suit No. 32/14 Surender Nath v. Roopinder Kumar 13/15 year 2011, he paid monthly rent at the rate of Rs. 3200/. Subsequently, rate of rent was increased to Rs. 4000/ per month in the year 2012. Hence, the Court is of the view that plaintiff shall be awarded mesne profits after a reasonable increase of rate of rent from Rs. 4000/ to Rs. 5000/ per month from 01.02.2014. Accordingly, plaintiff is entitled to mesne profits at the rate of Rs. 5000/ per month from 01.02.2014 till handing over the tenanted premises by the defendant to plaintiff. However, the defendant has made some payment as reflected from the receipt Ex. DW1/DE; hence, payment already made by the defendant shall be deducted from the amount payable by him to the plaintiff.
22.Further, there was no agreed rate of interest over rent due between the parties. Hence, the Court is not inclined to grant interest to the plaintiff over the arrears of rent or mesne profits at exorbitant rate of 12% per annum.
But, the plaintiff is entitled to recovery of pendente lite and future interest at the rate of 6% per annum from the defendant on mesne profits from the date the same became payable for the respective months. Hence, interest at the rate of 6% on the mesne profits is awarded to the plaintiff from 01.02.2014 till handing over of the suit property to the plaintiff by the defendant. Issues no. 3 and 4 are decided in favour of the plaintiff accordingly.
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23.Relief:
The suit of the plaintiff is decreed. The plaintiff is entitled to decree of possession of tenanted premises i.e. back portion at ground floor no. C109, Shakti Nagar Ext., Delhi110052 consisting of one bathroom, one room with covered gallery (in common use of both parties) and defendant is directed to hand over the vacant peaceful possession of the tenanted premises to the plaintiff. Further, the plaintiff is entitled to arrears of rent of Rs.4,000/ for the month of January 2014. The plaintiff is entitled to mesne profits at rate of Rs.5,000 per month from 01.02.2014 till the handing over of the tenanted premises by the defendant to plaintiff. However, the defendant has made some payments as per receipt Ex. DW1/DE; hence, the payment already made by the defendant shall be deducted from the amount payable by him to the plaintiff. Further, the plaintiff is also entitled to pendente lite and future interest at the rate of 6% over mesne profits. The decree in respect of mesne profits be executed only after payment of appropriate court fee. Decree sheet be prepared accordingly. The plaintiff is entitled to recover costs of the suit from the defendant.
File be consigned to Record Room.
Announced in the open Court (Naveen Gupta) on day of 16th September, 2014 Additional Senior Civil Judge cum Judge, Small Causes Court cum Guardian Judge, NorthWest District, Rohini, Delhi.
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