Delhi District Court
Sh. Shyam Sunder vs Sh. Uma Shanker Pandey on 28 February, 2012
IN THE COURT OF MS. NEHA, CIVIL JUDGE03(SOUTH),
SAKET COURTS COMPLEX, NEW DELHI
Suit no. 317/10
IN THE MATTER OF:
Sh. Shyam Sunder
S/o Shri Baljeet Singh,
C48, Khanpur Extension,
New Delhi110062. ......Plaintiff
Vs.
Sh. Uma Shanker Pandey,
S/o Ram Nagina Pandey,
238, D.D.A, Flats, Near Tigri,
Vayusenabad,
New Delhi110062. ......Defendant
Counsels : Sh. Sanjeev Kamra, Ld. Counsel for plaintiff
Sh. Anwar Sayeed Mohd., Ld. Counsel for defendant.
DATE OF INSTITUTION : 20.11.2009
DATE OF RESERVING THE ORDER : 27.02.2012
DATE OF DECISION : 28.02.2012
Shyam Sunder vs. Uma Shankar Pandey
CS. No. 317/10 Page 1 of 29
JUDGMENT
(Suit for Recovery of Rent of Rs. 1,40,000/, Possession and Mesne Profits)
1. Vide this judgment I shall decide the suit of the plaintiff for recovery of rent of Rs.1,40,100/, possession and mesne profits.
2. The facts in brief as per the plaint are that the plaintiff purchased the suit property bearing no.238, DDA Flats, Near Tigri, Vayusenabad, New Delhi from Sh. Naresh Kumar, son of Sh. Ram Singh in the year 2004. Sh. Naresh Kumar had purchased the property from Sh. Gopi Nath.
3. The plaintiff after purchasing the said property built a room on terrace and the same is in the possession of the plaintiff. The plaintiff has purchased the said property from Sh. Naresh Kumar with tenant who was paying rent of Rs.3400/ per month besides other charges. After purchasing the said flat, the defendant was duly informed and was requested to pay the future monthly rent of Rs.3400/ to the plaintiff.
4. The defendant with malafide intention had filed a suit for injunction without impleading plaintiff as a party and against the actual previous owner Sh. Gopi Nath and his daughter Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 2 of 29 namely Ms. Shalu. The suit is pending in the court of Ms. Monika Saroha, Ld. Civil Judge, Tis Hazari. When the suit was filed by the defendant, Mr. Gopi Nath and his sons were imprisoned and facing criminal trial under Section 302 IPC.
5. Ms. Shalu, daughter of Sh. Gopi Nath appeared before the Ld. Civil Judge and gave her statement that neither she nor her father was owner of suit property as the flat was sold by her father with tenant to Sh. Naresh and took all the consideration amount. Thereafter, she was omitted from the array of parties. After purchasing the suit property from Sh. Naresh Kumar, the plaintiff came to know about pendency of the suit of injunction in respect of the tenanted premises, he moved application under Order I rule 10 CPC to be impleaded as a party to the suit, which is pending adjudication.
6. The plaintiff approached the defendant on various occasions and requested him to pay rent and to vacate the suit property, but the defendant neither vacated the suit property nor paid any rent. As per Section 6 A of Delhi Rent Control Act, the defendant was served with a legal notice dated 30.05.2009 and plaintiff asked the defendant to pay rent at enhanced rate of Rs. Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 3 of 29 3740/ instead of Rs.3400 from 01.06.2009. The notice was duly served upon the defendant. With effect from 01.06.2009, the rate of rent of the suit property was Rs.3740 besides other charges.
7. The defendant has failed to pay any rent to the plaintiff despite several requests. Hence the plaintiff is entitled to claim arrears of rent for last three years that comes to Rs.1,40,00/ out of which Rs.1,22,400/ is outstanding arrears of rent/occupation charges from 01.04.2004 till 30.05.2009 at the rate of Rs. 3400/ per month and thereafter from 01.06.2009 till 31.10.2009 at the rate of Rs.3740/ per month i.e. Rs.17,700/.
8. The defendant failed to comply with the request of the plaintiff and neither vacated the suit property nor paid any rent to the plaintiff. The plaintiff sent a legal notice dated 25.09.2009 which was posted on 05.10.2009 under Section 106 of the Transfer of Property Act. Legal notice was duly served upon the defendant. But the defendant did not pay any heed to the request of the plaintiff. In spite of service of notice and repeated requests and demands, the defendant neither paid any rent nor vacated the suit property. The defendant is legally bound to Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 4 of 29 vacate the suit property and to pay arrears of rent. Hence the plaintiff has filed the present suit seeking following relief:
(a) A decree of possession by ejectment of the defendant from the suit premises/Flat bearing no. 238.DDA Flats, Near Tigiri, Vayusenabad New Delhi110062 may kindly be passed in favour of plaintiff thereby directing the defendant his agents, servant, attorney, etc. to handover the vacant peaceful possession of the same to the plaintiff in original shape and size.
(b) The decree of Rs. 1,40,100/ (Rupees one lac forty thousand and four hundred) (Rs.1,22,400/ (Rupees one lacs twenty two thousand four hundred) as outstanding rent/occupation charges w.e.f. 01.04.2004 till 30.05.2009 @ Rs.3400/ per month and thereafter from 01.06.2009 till 31.10.2009 @ Rs.3740/ per month i.e. Rs.17,700/ (Rupees seventeen thousand seven hundred) with interest on the outstanding amount of rent. (The plaintiff is claiming rent for the last three years only);
(c) Mesne profits/damages at the rate of Rs.8,000/(Rupees eight thousand) per month w.e.f. 01.11.2009 till the actually handing over the possession;
(d) Future interest @ 18% p.a. on outstanding rent and mesne Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 5 of 29 profits/damages from the date of filing of the suit.
9. The defendant has filed WS taking preliminary objection that the suit of the plaintiff is liable to be dismissed as the plaintiff has no locus standi to file the present suit. The suit of the plaintiff is not maintainable in law in the present form. This court has no jurisdiction to entertain the present suit. The relationship between the parties have been alleged to be of landlord and tenant and only court of Ld. Rent Controller has jurisdiction under Delhi Rent Control Act to adjudicate upon this matter. The suit of the plaintiff is liable to be dismissed for misjoinder and nonjoinder of necessary parties. The plaintiff has not come to the court with clean hands and suppressed material facts. The notice has not been served upon the defendant prior to the institution of the suit property. Hence the suit of the plaintiff is liable to be dismissed.
10. The plaintiff has not paid advalorem court fees on the reliefs claimed. The defendant has denied that the plaintiff is the owner of the suit property. The defendant has also denied that rate of the rent between Sh. Naresh Kumar and defendant was fixed at Rs.3400/ besides other charges. It is submitted that the Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 6 of 29 defendant was paying rent of Rs.700/ per month including all other charges. It is admitted by the defendant that he has filed suit for permanent injunction and it was decreed by the court of Ms. Monika Saroha, Ld. Civil Judge, CentralI. It is further submitted that the wife of the plaintiff was a party in that suit and thus the plaintiff had a knowledge about the pendency of the suit filed by the defendant. The defendant has also denied that he was served with notice under Section 6 A of Delhi Rent Control Act. However in para 8 of reply of merits, it is submitted by the defendant that he has sent arrear of rent through money order which the plaintiff malafidely refused to accept. The defendant has denied that he has not paid rent from 09.04.2004. Further, the defendant has denied all the allegations of the plaintiff in the plaint.
11. The plaintiff has filed replication to the WS of defendant in which the contentions of the WS is denied and averments of the plaint is reaffirmed.
12. From the pleading of the parties following issues were framed.
(1) Whether the plaintiff has no cause of action against the defendant?OPD Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 7 of 29 (2) Whether the plaintiff has no locus standi to file the present suit? OPD (3) Whether the plaintiff is entitled to decree of possession?
OPP (4) Whether the plaintiffs is entitled to decree of arrears of rent and mesne profits/damages?OPP (5) Relief, if any.
13.The plaintiff examined himself as the only witness as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. PW1 has filed upon following documents:
1. General Power Attorney dated 24.05.2004 executed by Sh.
Naresh Kumar in favour of plaintiff is Ex.PW1/1 (OSR).
2. Agreement to sell dated 24.05.2004 between the Naresh Kumar and the deponent is Ex.PW1/2(OSR).
3. Affidavit executed by Sh. Naresh Kumar is Ex.PW1/3(OSR).
4. Will executed by Naresh Kumar in favour of the deponent is Ex.PW1/4 (OSR).
5. Possession letter regarding handing over the property/flat to the deponent is Ex.PW1/5 (OSR).
6. Receipt is Ex.PW1/6(OSR).
Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 8 of 29
7. The chain of previous owner Mr. Gopi Nath in favour of Sh. Naresh Kumar is Ex.PW1/7.
8. Certified copy of order dated 04.01.2010 is Ex.PW1/8.
9. Copy of legal notice dated 30.05.2009 under Section 6 A of Delhi Rent Control Act is Ex.PW1/9.
10. Postal receipt is Ex.PW1/10.
11. AD card is Ex.PW1/11.
12. Copy of legal notice under Section 106 of Transfer of Property Act is Ex.PW1/12.
13.Postal receipt is Ex.PW1/13 and UPC receipt is Ex.PW1/14.
14. On the other hand defendant has examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/1. The defendant examined Smt. Jaya Laxmi W/o Sh. Selwaraj as DW2 who has tendered her evidence by way of affidavit Ex.DW2/A.
15. I have perused material on record and carefully considered the submission of the parties. My issue wise findings are as below:
16. Issue No.1 &2 Whether the plaintiff has no cause of action against the defendant?
Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 9 of 29 Whether the plaintiff no locus standi to file the present suit?
17. Issue no.1 and 2 are taken together as both the issues require common discussion. The onus to prove these issues was on the defendant. The defendant has examined himself as DW1 and Smt. Jayalaxmi as DW2.
18. The defendant has not stated in his affidavit that the plaintiff has no cause of action against the defendant or that the plaintiff has no locus standi to file the present suit. However the defendant has submitted in para no.3 and 4 of the preliminary objections in his WS that the plaintiff has no locus standi to file the present suit and that the plaintiff has no cause of action to file the present suit. It is the case of the defendant that there is no relationship of landlord and tenant between the plaintiff and the defendant as the suit property was taken on rent from Sh. Gopi Nath and the defendant has been paying rent to Gopi Nath and his daughter.
19. Ld. counsel for defendant has pointed out towards cross examination of the PW1 to show that he does not know anything about the suit property as he can not say about the site, floors etc of the property and he even does not know about the Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 10 of 29 consideration for which the suit property was purchased. Ld. counsel for defendant has also argued that no intimation was sent by either Gopi Nath, or Naresh Kumar or plaintiff that the suit property has been purchased by plaintiff. It is argued that the documents are forged and fabricated as Gopi Nath was in jail, therefore question of transfer of the suit property by Gopi Nath to Naresh does not arise.
20. Ld. counsel for plaintiff has argued that the suit property was purchased in the year 2004 and Sh. Gopi Nath was sent to Jail in the year 2006. It is also argued that the defendant has admitted in WS and cross examination that he has sent rent through money order to the plaintiff.
21. I have considered the submissions of Ld. Counsel for the parties. In the affidavit DW1 has deposed as under:
"3. That the deponent was giving the rent to the owner of the suit property Sh. Gopi Nath r/o 18/10, Local shopping complex, Dakshinpuri, New Delhi at the rate of Rs.700/ per month regularly and on time.
4. That the owner of the suit property was arrested in the murder case in the years 2006. The daughter of the Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 11 of 29 owner of the suit property Smt. Shalu started receiving the rent on behalf of his father.
5. That the daughter of the owner of the suit property namely Shalu had been receiving the rent since November 2007, and thereafter she refused to accept the rent, and the receipt was never by her.
6. That the owner of the suit property did not sell his property to Naresh Kumar son of Sh. Ram Singh in May 2004."
22. It is also noted that both the WS as well as affidavit of the defendant are silent as to whether the defendant did not know whether Naresh had sold property to plaintiff or he had not been intimated that the suit property has been purchased by the plaintiff.
23. In the present suit in para no.8 of reply on merits, the defendant has admitted that he has sent rent through money order to the plaintiff which the plaintiff has malafidely refused to receive. The defendant has also admitted in his cross examination that the money order has been sent to the plaintiff towards payment Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 12 of 29 of rent. Relevant portion of the cross examination of defendant is reproduced:
"After 2005 once I have sent the rent through money order but it was returned back. I do not know about the receipt of sending the money order. Vol. My son might be knowing the same. It is correct that I have send money order in the name of Shyam Sunder. It is wrong to suggest that I did not pay the entire rent through money order therefore it was returned back".
24. The defendant has challenged the locus standi to file the present suit on the ground that the suit property has never been purchased by the plaintiff and therefore he can not seek possession of the suit property. However the defendant has not been able to explain as to why he tendered the rent to the plaintiff especially in light of his stand that he never received any intimation with regard to the fact the plaintiff is the new landlord and the rent is to be tendered to him. Ld. counsel for the plaintiff has argued that once the defendant has tendered rent to the plaintiff by money order, he can not deny the title of the plaintiff.
Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 13 of 29
25. I find merit in the contention of Ld. counsel for the plaintiff that once the tenant has acknowledged the subsequent purchaser of the tenanted property as his landlord either by conduct or by offering rent, the tenant is estopped from denying the title of the landlord as per the underlying principle laid down in Section 116 of Indian Evidence Act .
26. Section 116 of Indian Evidence Act reads as under
"116. Estoppel of tenant; and of licensee of persons in possessionNo tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a little to such possession at the time when such licence was given".
27. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if the tenant is permitted to question the title of the landlord at Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 14 of 29 the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so equitable principle of estoppel has been incorporated by the legislature in the said section.
28. Strength can be taken from the judgment of Hon'ble High Court in V. N. Jartarghar and Bros., M/s. v. Puradapp AIR 2008 KARNATAKA 159 where in it has been observed that if the tenant has attorned to the subsequent purchaser of the tenanted property as his landlord, he can not deny that the subsequent purchaser did not had a title in the tenanted property. Relevant para of the judgment is reproduced as under:
"15. It is to be noticed that there is another compelling reason as to why the defendants should not be allowed to challenge the right of the plaintiffs to prosecute the suit. The plaintiffs have clearly averred in the pleadings that the defendants have paid the rents to them. Thus by conduct have attorned the tenancy in respect of the suit premises as per the terms of the original lease. Added to this, the defendants by conduct have admitted Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 15 of 29 the ownership of the plaintiffs and they are their landlords. Indeed this may not be a case of estoppel within the meaning of Section 116 of the Evidence Act, which would certainly operate in favour of the landlord. The principle of Estoppel is also applicable to cases not strictly coming within the provisions of Section 116 of the Evidence Act. Indeed the case on hand would fall in one of the cases where, notwithstanding Section 116 of the Evidence Act not strictly applicable, but by acknowledging the plaintiff as the owner and paying rent to a landlord, who has derivative title, the defendant cannot at a later stage be permitted to raise a contention that he is not his landlord. Indeed the Court proposes to proceed on the general principles of Estoppel dehors with reference to Section 116 of the Evidence Act."
29. Reliance can also be placed on the judgment of Hon'ble Madras High Court in Venkata Chetty vs Aiyanna Goundan (1916) 31 MLJ 712. In the said judgment it has observed as under:
"7. I would therefore answer the question in this way:A tenant Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 16 of 29 who was let into possession is estopped from denying a landlord's title. A tenant who was not let into possession by the person seeking to eject him is not estopped from denying the plaintiff's title ; he may show that the title is in some third person or in himself. But the execution of a lease or payment of rent by the defendant is a prima facie proof of the plaintiff's title which the Court dealing with the evidence will ordinarily treat as conclusive in his favour unless the fact is sufficiently explained. In most cases of this nature the presumption in favour of the plaintiff can only be displaced by the defendant showing that the attornment was made by him in ignorance of the plaintiff's title or was induced by fraud, misrepresentation or coercion.
" If the defendant has expressly attorned to the plaintiff, he will thereby be estopped from disputing the plaintiff's title, unless such attornment be proved to have been obtained by fraud, or through some mistake of facts."Bigelow in his book on Estoppel says that " payment of rent is evidence of permissive occupation and when unaccompanied by fraud or mistake establishes the Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 17 of 29 relation of landlord and tenant and is the ordinary evidence upon which the estoppel arises, though it is by no means the only evidence upon which the estoppel may be founded." I do not think it necessary to multiply citations any further. In my opinion the estoppel of the tenant under Section 116 is not confined to cases where possession was originally obtained from the landlord but extends to all cases of tenancy.
30. In the present suit, admittedly the defendant has offered arrears of rent to the plaintiff by sending money order. Now the defendant cannot be allowed to deny that the plaintiff is not the landlord of the suit property. It is not the case of the defendant that the plaintiff has fraudulently represented him as landlord. It is the case of the defendant that the suit property has not been purchased by the plaintiff. However the defendant has still tendered rent to the plaintiff and has attorned plaintiff as his landlord. Therefore, this court holds that the plaintiff has cause of action to file the suit and the plaintiff also has locus standi to file the present suit. Hence the issue no. 1 and 2 are decided against the defendant and in favour of the plaintiff. Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 18 of 29
31. Issue no. 3 and 4 Whether the plaintiff is entitled to decree of possession?
Whether the plaintiffs is entitled to decree of arrears of rent and mesne profits/damages?
32. The issue no. 3 and 4 are taken together as both the issues require common discussion. The onus to prove these issues was on the plaintiff. The plaintiff examined himself as PW1. PW1 has stated that he had purchased the suit property with tenant from Sh. Naresh Kumar in the year 2004. After purchasing the said flat, the defendant was duly informed and the plaintiff requested the defendant to pay future monthly rent of Rs.3400/ to the plaintiff. When the defendant failed to pay monthly rent of the premises, the plaintiff approached on various occasions to the defendant and requested him to pay monthly rent and also to vacate the suit property. Since the date of purchase of the flat/premises more than three years had expired and as per the provision of Section 6A of Delhi Rent Control Act, the defendant was duly served with notice dated 30.05.2009 and asked the defendant to pay enhanced rent of Rs.3,740/ in stead Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 19 of 29 of Rs.3400/ from 01.06.2009. The notice was duly served upon the defendant.
33. Plaintiff has also deposed that when the defendant failed to comply with the request of the plaintiff and failed to make any payment of previous rent as well as enhanced rate of rent, a legal notice dated 25.09.2009 under Section 106 of Transfer of Property Act was duly served upon the defendant and the tenancy of the defendant was duly terminated w.e.f. mid night of 31.10.2009 and asked the defendant to pay arrears of rent and to vacate the premises and hand over peaceful possession of the suit premises.
34. The defendant has denied that he has received any notice under Section 6 A of Delhi Rent Control Act. It is also denied that he has received any notice under Section 106 of transfer of property Act.
35. Ld. counsel for the plaintiff argued that both the notices has sent on the correct address and defendant was duly served with both the notices.
36. I have perused the record. The plaintiff has proved notice under Section 6 A of Delhi Rent Control Act as ExPW1/9, Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 20 of 29 postal receipt is Ex.PW1/10 and AD Card is Ex.PW1/11. The defendant has admitted in his cross examination that the AD card bears the correct address of the defendant. However he has denied that it bears signature of any of his family members.
37. Where the notice under Section 6 A of Delhi Rent Control Act has been sent by the plaintiff on the correct address, the burden lies on the defendant to prove that the notice was never received. Mere denial by the defendant is not sufficient to show that he has not received notice under Section 6 A of Delhi Rent Control Act. Presumption under Section 27 of General Clauses Act r/w Section 114 of Indian Evidence Act can be taken in the present suit. No material has been brought by the defendant to show that he has not received notice under Section 6 A of Delhi Rent Control Act. The balance of probability lies in favour of the plaintiff and against the defendant as the notice has been sent on the correct address and AD card is also received back duly acknowledged. Hence this court holds that notice under Section 6 A of Delhi Rent Control Act was duly served upon the defendant.
38. In the notice under Section 6 A of Delhi Rent Control Act, the Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 21 of 29 plaintiff has stated that he has purchased the suit property from its previous owner Sh. Naresh Kumar in April 2004 with tenant. It is also stated that the defendant was tenant in respect of the said flat no.238, Near Tigri at monthly rent of Rs,3,400/ per month besides other charges when the said flat was purchased by the plaintiff.
39. It is also stated that in this regard the plaintiff had intimated the defendant about the same. It is alleged that the defendant has not paid any rent to the plaintiff since the date of purchase of the said flat to the plaintiff. In the said notice it is stated by the plaintiff that :
6. That you are in arrears of rent since May 2004 and failed to pay the rent to my aforesaid client in spite of repeated request and demand.
You are in arrears of Rs.2,04,000/ till 31st May 2009. but my aforesaid client is demanding the outstanding rent for the last three years i.e. comes to Rs.1,22,400/.
7. That since more then three years has lapsed Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 22 of 29 from the date of purchase of the above said property by my aforesaid client and as per the provision Section 6A of the Delhi Rent Control Act, my aforesaid client intended to increase the rent by 10% of the existing rent. That since 1st June 2009 your rent will be Rs.3,740/ (Rupees three thousand seven hundred and forty).
40. As I already observed that this notice is presumed to be served upon the defendant. The defendant has not sent any reply to this notice. Notice under Section 6 A of Delhi Rent Control Act has to be sent by landlord in writing signed by or behalf of the landlord and given in the manner provided in Section 106 of Transfer of Property Act, 1982. In the present case, the plaintiff has sent notice under Section 6 A of Delhi Rent Control Act as per Section 8 of Delhi Rent Control Act. The balance of probability lies in favour of the plaintiff (as no reply has been received from the defendant) that it is admitted by the defendant that the rent of the suit property was Rs.3,400/ and has been increased from Rs.3,400/ to Rs.3,740/.
Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 23 of 29
41. The notice under Section 106 of Transfer of Property Act has been sent on the correct address. Mere denial is not sufficient to show that the defendant has not received the notice terminating the tenancy and payment of arrears of rent. The presumption under Section 27 of General Clauses Act apply and I am of the opinion that the notice under Section 106 of Transfer of Property Act has been duly received by the defendant.
42. The defendant has deposed in his affidavit that the suit property has been given on rent at the rate of Rs.7,00/ per month. However it is necessary to state that defendant was not ware of the contents of his affidavit. The defendant has admitted in his crossexamination that he does not know the contents of his affidavit. Defendant is also not aware as to who has prepared the affidavit tendered in his evidence.
43. It has been held in various judgments that the testimony of witness can not be relied upon if the witness does not know the contents of the affidavit tendered in his examinationinchief. Strength in this regard can be taken from the constitution bench judgment of Hon'ble Supreme Court in Kalyan Kumar Gogoi Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 24 of 29 Vs. Ashutosh Agnihotri & Anr dated 18 January, 2011 wherein Hon'ble Apex Court has upheld the order of High Court in discarding the testimony of witnesses who were not aware of contents of their affidavit tendered in evidence. It has been observed that:
"What was maintained before this Court by the learned counsel for the respondent No. 2 was that on behalf of the illiterate people, affidavits were prepared by lawyer without making the illiterate people aware about the contents of the affidavits and, therefore, the High Court was justified in brushing aside the evidence of those witnesses.....One of the grounds mentioned by the learned Single Judge of the High Court for disbelieving the witnesses of the appellant is that they were illiterate, but their affidavits were got prepared in English language through lawyer which were treated as their examination inchief. There is no denial by the appellant that the witnesses were illiterate and that their affidavits were prepared by the lawyer and were presented before the Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 25 of 29 Court. The persons, who had put their thumb marks on the affidavits, which were in English language, could have been hardly made aware about the English contents of the affidavits sworn by them."
44. It is the case of the defendant that the rent of the suit property was Rs. 700/ per month. But the defendant has failed to place any material on record to support his contention. Section 26 of the Delhi Rent Control Act lays down that every tenant who makes payment shall be entitled to obtain a written receipt for the amount paid and if the landlord refuses to issue receipt, the tenant can file petition before Rent Controller. In the present case, defendant has never demanded any receipt from the landlord. Defendant has deposed in his crossexamination that Gopi Nath has never issued any rent receipt. But the defendant has not placed any material on record to show that he has ever demanded any receipt from Gopi Nath, if Gopi Nath had refused to issue any rent receipt or had filed any petition for issuance of certificate in respect of rent paid by him.
45.Balance of probability lies in favour of the plaintiff and against the defendant. In view of above discussion, this court holds that Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 26 of 29 the rent of the suit property was Rs. 3400/ and rent was enhanced to Rs. 3,740/ w.e.f 01.06.2009 and notice under Section 106 of Transfer of Property Act has been served upon the defendant. The defendant has not vacated the suit property even after service of the notice. Therefore, the plaintiff is entitled to recover possession of the suit property .i.e flat no. 238, DDA Flats, near Tigri, Vayusendabad, New Delhi.
46. Plaintiff has also claimed arrears of rent of Rs. 1,40,100/ as outstanding rent at the rate of Rs. 3,400/ w.e.f 01.04.2004 till 30.05.2009 and thereafter from 01.06.2009 at the rate of Rs. 3,740/ till 31.10.2009 and mesne profits at the rate of Rs. 8,000/ per month from 01.11.2009 till the actual possession of the property is handed over.
47. Plaintiff has filed present suit on 18.11.2009. The plaintiff is entitled to recover arrears of rent only for last three years before the date of filing of the suit .i.e only from 18.11.2006 onwards. Plaintiff has claimed usage charges at the rate of Rs. 3400/ per month from 18.11.2006. As observed defendant has failed to show that the rent of the property was Rs. 700/ per month. The defendant has admitted in his crossexamination that he has Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 27 of 29 made payment of rent upto the year 2005 to Sh. Gopi Nath and thereafter he has not paid any rent.
48. Therefore, the plaintiff is entitled to recover usage charges at the rate of Rs. 3,400/ from 18.11.2006 upto 30.05.2009 which is Rs. 1,03,000/and usage charges at the rate of Rs. 3,740/ from 01.06.2009 till the date of filing of the suit which is Rs. 18,700/. Thus the plaintiff is entitled to receive a total sum of Rs. 1,21,700/ towards the arrears of the rent and usage charges. Plaintiff has claimed a sum of Rs. 8,000/ as mesne profits per month from the date of filing of the suit till the possession is received. However the plaintiff has not brought any material on record to show that the current market rent of the suit property is Rs. 8,000/ per month. Hence the plaintiff is entitled to receive mesne profits at the rate of Rs. 3,740/ per month from the date of filing of the suit till the actual, vacant and physical possession of the suit property is recovered.
49.Relief In view of my findings on issue no. 3 and 4, the plaintiff is entitled to decree of possession of the suit property i.e. flat no. Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 28 of 29 238, DDA Flats, near Tigri, Vayusendabad, New Delhi. The plaintiff is entitled to receive a total sum of Rs. 1,21,700/ towards the arrears of the rent and usage charges. Plaintiff is also entitled to receive mesne profits at the rate of Rs. 3740/ per month from the date of filing of the suit till the actual, vacant and physical possession of the suit property is recovered.
Plaintiff is directed to pay deficient court fees on the amount decreed. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to the record room. Pronounced in the open court on 28.02.2012 (NEHA) Civil Judge03(South) Saket, New Delhi.
Shyam Sunder vs. Uma Shankar Pandey CS. No. 317/10 Page 29 of 29