Delhi District Court
Sh. Jagbir Tanwar vs Sh. Isab on 28 February, 2012
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by : Ms. Vijeta Singh
Suit No.18/11
Case ID No. 02406C0014032011
In the matter of:
Sh. Jagbir Tanwar
S/o Late Sh. Choudhary Harbhajan
r/o Village Chandan Hulla, Main Road
New Delhi110074
...... Plaintiff
VERSUS
Sh. Isab
S/o Sh. Lala Khan
R/o Village Chandan Hulla,
Main Road, New Delhi110074 .......Defendant
Date of Institution : 22.12.2008
Date of Reserving of Judgment : 24.02.2012
Date of Pronouncement of Judgment : 28.02.2012
Suit No. 18/11 1/15 pages
Jagbir Tanwar v. Isab
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant praying for the following reliefs:
"(a) Pass a decree for recovery of possession in favor of the plaintiff an against the defendant in respect of Suit Property i.e. Shop No.21 situated in Khasra No.291 (Old Khasra No.150), Village Chandan Hulla, Main Road, New Delhi110074 which is more specifically shows in red color in the enclosed site plan
(b) Pass a decree for arrears of rent and damages of Rs.
1,04,500/ (Rs. One Lac Four Thousand Five Hudnred Only) including interest w.e.f. 01.10.2004 till 30.11.2008 and pendente lite and future damages at the rate of Rs.1600/ per month with interest till realisation.
(c) Pass any other relief, which this Hon'ble Court deems just and proper in the light of above facts and circumstances in favour of the plaintiff and against the defendant"
CASE OF THE PLAINTIFF
2. It is the case of the plaintiff that the plaintiff is the owner and landlord of suit property i.e. Shop no. 21 admeasuring 8'.4"x13'.5" situated in Khasra No.291 (Old Khasra No.150), Village Chandan Hulla, Main Road, New Delhi110074 and the defendant is a tenant in the suit property since last seven years at a monthly rent of Rs.1600/ excluding Suit No. 18/11 2/15 pages Jagbir Tanwar v. Isab other charges. The tenancy of the defendant is on a month to month basis commencing from first day of each Calender month. Since October 2004, the defendant neither tendered nor paid any monthly rent to the plaintiff despite repeated requests and demands. Therefore, on 16.9.2008, the plaintiff issued a legal notice through his Counsel to the defendant demanding the arrears of rent of Rs.75,200/ being the rent for 47 months with effect from 1st October 2004 to 31st August 2008 @1600/ per month with interest at @15% per annum. Vide the said legal notice the tenancy was also terminated from midnight between the 31st day of October 2008 and 1st day of November 2008. The defendant was also required to handover the vacant and peaceful possession of the suit property to the plaintiff but despite the receipt of the legal notice neither has the defendant paid the arrears of rent nor has he handed over the vacant and peaceful possession of the suit property. Therefore, with effect from 1st November 2008 he has become an unauthorised occupation of the suit property and is also liable to pay damages to the plaintiff @1600/ per month. Since the property is situated in Village Chandan Hulla, the provision of Delhi Rent Control Act, 1958 are not applicable to present dispute as village Chandan Hulla is not notified for the purposes of Delhi Rent Control Act, 1958. Therefore, it is stated Suit No. 18/11 3/15 pages Jagbir Tanwar v. Isab that this Court has jurisdiction to entertain the present matter.
3. The cause of action stated to have arisen when the defendant failed to pay the monthly rent of the suit property after 1st October 2004; when despite the receipt of the legal notice dt. 16.9.08 neither the arrears of rent were paid nor the suit property was vacated and the defendant became unauthorised occupant since 31st October 2008 and the cause of action is stated to be continuing.
CASE OF THE DEFENDANTS
4. Written statement was filed by the defendants as per which the provisions of Delhi Rent Control Act are applicable to the present matter and therefore this Court has no jurisdiction to try the present suit. It has been denied that there exists any landlord tenant relationship between the parties. As per the defendant, the suit property was let out by one Sh. Brahm Singh about 15 years back on a monthly rent of Rs. 250/. The rent was subsequently enhanced and at present the same is Rs.750/ per month excluding electricity charges as per the sub meter reading. The plaintiff therefore has no locus standi to file the present suit and the present suit has been filed with malafide intention to harass Suit No. 18/11 4/15 pages Jagbir Tanwar v. Isab the defendant. It has been denied that there are any arrears of rent towards the suit property. The defendant claims to have paid the rent till the month of December, 2008 to Sh. Brahm Singh. However, when the rent for the month of Jaunary, 2009 was offered to him, he declined to accept it and so the same was sent though money order. Sh. Brahm Singh also never issued any rent receipt to the defendant despite several demands. It is denied that the legal notice dated 16.9.08 has been received by the defendant. There is a complete denial of any liability to pay Rs.1,45,000/ as sought by the plaintiff.
REPLICATION
5. Replication was filed wherein the contents of the written statement has been denied and those of the plaint have be reiterated.
ISSUES
6. On the basis of the pleadings, Ld. Predecessor of this Court has framed the following issues:
1. Whether the suit of the plaintiff is bared u/s 50 of Delhi Rent Control Act? OPD
2. Whether there is no relationship of landlord and tnant between plaintiff and the defendant? OPD Suit No. 18/11 5/15 pages Jagbir Tanwar v. Isab
3. Whether notice dt. 16.9.08 was not received by the defendant?
OPD
4. Whether the plaintiff is entitled for any relief, if so, what relief?
EVIDENCE
7. In support of its contentions plaintiff examined himself as PW1 and Sh.
Brahm Singh as PW2. PW1 tendered affidavit Ex.PW1/A along with following documents:
i) Ex.PW1/1 site plan,
ii) Ex.PW1/2 certified copy of Revenue Record of Khasra no. 291, Village Chandan Hulla, Tehsil Hauz Khas
iii) Ex.PW1/3 Aks Sizra of the Khasra no. 291
iv) Ex.PW1/4 Copy of legal notice dt. 16.09.08
v) Ex.PW1/5 postal receipt
vi) Ex.PW1/6 UPC receipt
vii) Mark A copy of letter sent by counsel for the plaintiff to Post Office, Tis Hazari
viii) Ex.PW1/8 and Ex.PW1/9 replies dated 17.10.08 and 21.10.08 respectively received by counsel for the plaintiff from the post office.
Suit No. 18/11 6/15 pages Jagbir Tanwar v. Isab
8. PW1 was partly cross examined by the Ld. Counsel for the defendant on 28.02.2011. However, vide order of this Court dated 22.03.2011 right to further cross examination was closed and an application u/s. 151 CPC for recalling of the order was also dismissed vide order dated 14.09.2011. PW2 tendered Ex.PW2/A on 25.10.10. However, right to cross examination as aforementioned of this witness also stood closed vide order dated 22.03.2011 and was also subsequently not recalled.
Plaintiff evidence was closd on 22.03.11 vide separate statement of the plaintiff.
9. Defendant examined himself as DW1 and tendered affidavit Ex.PW1/X along with following document:
i) Ex. DW1/A Copy of electricity bill NO. 377974 (objected to on the mode of proof).
ii) Ex. DW1/B Copy of electricity bill dt. 16.03.1999(objected to on the mode of proof).
iii) Mark A to B Copy of the order dt. 25.02.2008 in FIR No. 172/99 and copy of Chargesheet dt 14.03.1999
iv) Ex. DW1/C & DW1/D postal receipts of money orders sent to Sh. Bhram Singh.
Suit No. 18/11 7/15 pages Jagbir Tanwar v. Isab
10. He was duly cross examined by the Ld. Counsel for the plaintiff on 06.02.2012 and defence evidence was closed vide separate statement of the defendant on the same date. Thereafter, the matter was listed for final arguments.
11. Ld. counsel for the plaintiff Sh. D P Goel led his arguments on 24.02.2012. Defendant was afforded the opportunity to led arguments or file written submissions by 27.02.2012 but same has not been done.
FINDINGS
12. This court given its thoughtful consideration to the submissions of the parties. The material on record has also been carefully perused.
13. The issuewise findings are as under:
ISSUE NO. 1
Whether the suit of the plaintiff is bared u/s 50 of Delhi Rent Control Act? OPD
14. The onus to prove this issue was upon the defendant.
15. No arguments have been led by the defendant.
Suit No. 18/11 8/15 pages Jagbir Tanwar v. Isab
16. Ld. Counsel for the plaintiff has argued that as per Section 1 (2) of The Delhi Rent Control Act, 1958, the Act is applicable to the areas included within the limts of the New Delhi Municipal Committee and the Delhi Contonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the first Schedule. The exception to the same is that the Central Government may by notification in official gazette extend the Act or any provision thereof to any other urban areas included within the limits of Municipal Corporation of Delhi or exclude any area for operation of the Act or any provision thereof. It was urged placing reliance upon the notification no. G.S.R 486 dated 12th April 1962, S.O. 1236 dated 27th March 1979, No. 8047/T/CO/SC dated 31st March 1960, No. RNZ/526 dated 23rd May 1963, No.F.2(49)/65LSG dated 3rd June 1966 and No.F. 9(2)66/Law.Corp. Dated 28th May 1966, that the suit property falls in an area which has not been covered by the notifications and therefore the Act is not applicable.
17. DW1 has stated in paragraphs no 10 of his affidavit Ex.DW1/X as under:
"I say that the premises are being governed by the provisions of Delhi Rent Control Act as the area of suit property is specified in the 1st shedule of DRC ACT and Suit No. 18/11 9/15 pages Jagbir Tanwar v. Isab thus the present suit is not maintainable in its present form."
18. Apart from a bald allegation, no documents have been adduced in evidence in support of the contentions. This is juxtaposed against the testimony of PW1 who stated that the property falls in the Lal Dora area and the notification brought to the notice of this Court by Ld. Counsel for the plaintiff and taking judicial notice of the same, this Court is of the view that the suit property which falls in Village Chandan Holla not being reflected in the said notification is not covered by The Delhi Rent Control Act, 1958.
19. Therefore, the issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2
Whether there is no relationship of landlord and tenant between plaintiff and the defendant? OPD
20. The onus to prove this issue was upon the defendant.
21. No arguments have been led by the defendant. Ld. Counsel for the plaintiff urged that onus has not been discharged by the defendants.
Suit No. 18/11 10/15 pages Jagbir Tanwar v. Isab
Attention of the court was drawn to the cross examination of PW1 where no suggestion was put to the witness qua his landlordship and his ownership over the suit property. Further, attention of the Court was also drawn to Ex.PW2/A who had deposed in favour of the plaintiff and was the person whom the defendant claimed to be his landlord. Placing reliance upon Ex.DW1/A, Ld. Counsel for the plaintiff submitted that the same does not pertain to the suit property and even otherwise, the same was not duly proved being the photocopy. It was also submitted that Ex.DW1/B was photocopy that was not duly proved and even otherwise since the originals would have been in possession of the plaintiff no explanation has come forth for leading a secondary evidence. In specific, attention of the court was drawn to Ex.DW1/B to show that the name of Sh. Brahm Singh had been inserted subsequently and is also not in the handwriting of the person who had prepared same. Thus, it was claimed that the document is a photocopy and forged. Even in Mark A, the owner and the tenant both were required to be made parties and and still the name of the Brahm Singh is not reflected as the owner. Thus, it was urged that the issue should be decided in favour of the plaintiff.
22. Defendant as DW1 deposed in paragraph no.4 of his affidavit Suit No. 18/11 11/15 pages Jagbir Tanwar v. Isab Ex.DW1/X as under:
"I say that the suit property was initially let out for a monthly rent of Rs.250/ per month. The monthly rent was enhanced from time to time and at present the rate of rent is Rs.750 per month excluding electricity charges. A copy of the electricity bill dated 6.07.09 pertaining to suit property is Ex.DW1/A."
23. In paragraph 5, he stated as under:
"I say that a case of theft has been registered against the deponent in the year 1999 in which the name of the owner has been shown as Brahm Singh."
24. Ex.DW1/A has been perused. The same has not been duly proved and is therefore inadmissible in evidence. Even otherwise, the same doe snot show whether it pertains to the suit property. Ex.DW1/B has been perused. The same has been issued in the name of the proprietorship concern. The name of the owner shown to be Sh. Brahm Singh. However, no explanation has come forth for leading a secondary evidence. It is not even the case of the defendant that he is not in possession of the said documents. The said document, in the considered view of this Court not having been duly proved is inadmissible in evidence and cannot be relied upon. The defendant has relied upon Mark A which once again has not been proved and is inadmissible in Suit No. 18/11 12/15 pages Jagbir Tanwar v. Isab evidence and even otherwise is irrelevant to the factum of landlord and tenant relationship. The feeble evidence led by the defendant is juxtaposed against the testimony of PW1 that has remained untraversed as regards the ownership and landlordship over the suit property. PW1 has relied upon Ex.PW1/2 which is certified copy of revenue record. However, Ex.PW1/2 has also not been duly proved and is inadmissible in evidence. Be that as it may, PW1 has withstood the cross examination and has deposed that the suit property which was ancestral in nature and was in the name of his father came to his share by way of family settlement. Further, DW1 in his cross examination admitted that he has sent money order to the plaintiff and he has receipt of the same. He has also admitted that the Harbhajan is the father of the plaintiff. Keeping in view the facts and circumstances, the preponderence of the probabilities has tilted in favour of the plaintiff and the issue is therefore decided in favour of the plaintiff and against the defendant.
ISSUE NO.3 Whether notice dt. 16.9.08 was not received by the defendant? OPD
25. The onus to prove this issue was upon the defendant.
26. No arguments have been led by him. Ld. Counsel for the plaintiff Suit No. 18/11 13/15 pages Jagbir Tanwar v. Isab submitted that he has filed the postal certificate as proof of service upon the defendant. He has drawn the attention of the Court to the cross examination of PW1 to show that no suggestion has been put to the witnesses qua non service of notice. Attention of the Court was drawn to cross examination of DW1 wherein he has stated that, "It is correct that the money order to the plaintiff was sent after the receipt of notice dt. 16.09.2008". Thus, it was urged that sufficient evidence has been brought on record in support of the claims of the plaintiff and issue should be decided in favour of the plaintiff.
27. The defendant has stated in his affidavit Ex.DW1/X that he did not receive any notice from the plaintiff regarding the termination of tenancy. In his cross examination he stated that he had sent money order to the plaintiff after receipt of notice dt. 16.09.2008. PW1 has relied upon the postal certificate. However, in the considered view of this Court Ex.PW1/8 and Ex.PW1/9 have not been duly proved as none from the postal department was examination. However, Ex.PW1/5 and Ex.PW1/6 remained unchallenged. As per Section 27 of The General Clauses Act 1897 the legal notice is deemed to have been served upon the defendant. The issue is therefore decided in favour of the plaintiff and against the defendant.
Suit No. 18/11 14/15 pages
Jagbir Tanwar v. Isab
ISSUE NO. 4
Whether the plaintiff is entitled for any relief, if so, what relief?
28. The plaintiff is therefore entitled to the relief of possession of the suit property i.e. Shop No.21 situated in Khasra No.291 (Old Khasra No.
150), Village Chandan Hulla, Main Road, New Delhi110074 and arrears of rent @1600/ per month with effect from December, 2005 till 31.10.2008. Rent from the period from 01.10.2004 till November, 2009 being barred by limitation cannot be granted to the plaintiff.
29. Since the defendant became unauthorisd occupant of the suit property since 1.11.2008 he is also entitled to pay mesne profit to the plaintiff which Rs.1600/ as demanded by the plaintiff and also being the last rent payable. Rent already paid during the pendency of the suit shall be adjusted against the amount decreed to be recoverable. Execution of the decree would be subject to payment of Court Fees on mesne profit.
30. Decree sheet be prepared accordingly.
31. Parties to bear their own cost
32. File be consigned to Records.
Announced in the open Court (Vijeta Singh) on 28.02.2012 Civil Judge04 / South District Suit No. 18/11 15/15 pages Jagbir Tanwar v. Isab