Delhi District Court
Suit No.52/99 vs Sh. Ram Shankar on 21 May, 2007
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IN THE COURT OF SH. SUMIT DASS, CIVIL JUDGE, DELHI
Suit no.52/99
M/s Prithvi Narain Beri & Sons,
HUF, though its Karta,
Shri Prithvi Narain Beri,
S/o late Shri Shiv Narain Beri,
resident of:-52, Bagh Diwar,
Delhi-110006 ................................. Plaintiff.
Versus
Sh. Ram Shankar,
S/o late Shri Narain Dass,
R/o 52, Bagh Diwar,
Delhi-110006 .................................. Defendant.
Suit for possession/ejectment and
recovery of damages/mesne profit
of Rs.612/- on behalf of the plaintiff.
JUDGEMENT
1. Vide this judgement I shall dispose off the present suit for possession/ejectment and recovery of damages/mesne profits of Rs.612/-(Rs. Six Hundred Twelve Only).
2. The averments made in the plaint may be noted in brief: The plaintiff had averred that the plaintiff is an HUF and Sh. Prithvi Narain Beri is the Karta of said HUF. The said HUF is the owner of the property no.52, Bagh Diwar, Delhi-06. Sh. P.N. Beri is conversant with the facts of the case and competent to file the present suit. 2
3. It was further stated that Sh. Narain Dass, the father of the defendant was the tenant under the plaintiff on a monthly rent of Rs.17/- in respect of one room near entrance on the ground floor of the property no.52, Bagh Diwar, Delhi-6, more prominently shown in red colour in the site plan. The tenancy was stated to be a month to month tenancy which commenced from 1st day of every English calender month and ended on the last day of the same month.
4. It was further averred that the contractual tenancy of the father of the defendant was duly terminated by the plaintiff vide legal notice dated 17.03.78. The said notice was duly served on Sh. Narain Dass, the father of the defendant. The father of defendant had also given a reply dated 12.04.78 to the same through Sh. Chaman Lal Sharma, Advocate.
5. It was further averred that the plaintiff had filed an eviction petition against Sh. Narain Dass, the father of the defendant under Section 14 (1) (e) r/w Section 25 (B) of Delhi Rent Control Act, 1958 (hereinafter referred to as the Act). During the pendency of said petition Sh. Narain Dass died on 09.01.1996. The plaintiff herein had moved an 3 application under Order 22 rule 4 r/w Section 151 CPC along with Section 2 (l) of the Act, thereby impleading only one of the sons of deceased as legal heir (defendant herein) on the ground that Sh. Narain Dass was the statutory tenant, as his tenancy was duly terminated by notice dated 17.03.1978, and the defendant was the only person as per Section 2(l) upon whom the tenancy devolved, that too for a limited period of one year. It was further stated that Sh. C.K.Chaturvedi, the then ld ARC had allowed the application of the petitioner and made the present defendant as the only legal heir entitled to be made party to the said case. It was specifically averred that the said ld ARC had held that the legal heir cannot deny the notice of termination of tenancy.
6. The earlier eviction petition under Section 14 (1) (e) was heard by Ms. Asha Menon, the then ld ARC, whereby ld ARC was pleased to observe that the case of the plaintiff before her was not covered under the judgement reported as ''1996-II AD 36'' and had dismissed the said eviction petition. It was further claimed that Sh. Narain Dass, the father of the defendant had died as a statutory tenant, thereby his tenancy rights devolved as per explanation of Section 2(l) of the Act and only the defendant had inherited the same. It was further averred 4 that the widow of the deceased was not residing in the premises in dispute at the time of death of the deceased. Other legal heirs had also not occupied the same at any point of time. The Plaintiff also relied on the affidavit filed by the deceased NarainDass and his two sons namely Sh. Rama Shankar (defendant herein) and Sh. Som Nath before the competent authority slum, whereby they had taken the stand that the wife of the deceased and two unmarried sons and daughters were residing in the native village and two married daughters of late Sh. Narain Dass were living in their in-laws house. Sh. Som Nath the other son was stated to be residing at Ranjit Nagar and was employed in DDA. The defendant herein was residing in the premises in dispute and was employed in DDA and not financially dependent on the deceased in as much as he was not contributing anything in the mess and was having his own separate mess. Since, the spouse was not ordinarily residing in the tenanted premises as the member of family, hence, the widow does not acquire any right in the tenancy after the demise of late Sh. Narain Dass. Section 2(l) of the act was pressed to suggest that the defendant acquired a limited right of residence for one year alone, thereupon the possession of the defendant over the tenanted premises became unlawful and illegal.
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7. Regarding arrears of rent , the plaintiff averred that Sh. Narain Dass was irregular in payment of rent and was in arrears since, 01.11.1995 @ 17/-. After 09.01.97 the defendant was stated to be liable to pay damages /mesne profits @ 1500/- per month. However, the petitioners were claiming damages @ Rs.17/- per month for the last three years. Plaintiffs had also filed a civil revision petition before the Hon'ble High Court. Plaintiffs also served a legal notice dt.08.09.98 by registered AD and UPC post calling upon the defendant to hand over the possession of the premises. In these circumstances the plaintiff sought a decree of possession in respect of one room on ground floor of suit property and a further sum of Rs.612/- as damages/mesne profit along with 24% per annum pendentelite and future interest, a decree of damages @ 1500/- was also sought.
8. The defendant was duly served and he filed his detailed written statement. The defendant had taken the preliminary objection that the suit was not maintainable against the defendant alone in as much as the defendant was one of the tenants- in common in the suit premises. It was stated that Sh. Narain Dass died as a contractual tenant, whereby his rights under the tenancy devolved under the ordinary law of succession. It was also claimed that the suit of the plaintiff was bad 6 for non joinder of necessary parties. Sh. Narain Dass at the time of his death left his widow Mrs. Narain Dass and four sons and three daughters, all of them being LRs had inherited the tenancy rights as tenant in common. The present suit was also stated to be barred by the principle of resjudicata and constructive resjudicata as the question raised in the present suit was decided in the earlier eviction petition titled as ''Prithri Narain Beri and Sons Vs. Sh. Narain Dass through LR Sh. Rama Shankar'' by Ms. Asha Menon, the then ld ARC vide her judgment 14.08.97. The defendant further denied the factum, validity and service of the legal notice dated 17.03.78, whereby the tenancy of the tenant Sh. Narain Dass was stated to have been terminated. A further plea was taken by the defendant that even assuming though not admitting that such a legal notice was served then 12 years limitation from the date of termination of contractual tenancy has expired, thereby rendering the effect of the legal notice as nugatory . Another plea with regard to non payment of court fees was raised on the basis that the plaintiff should have valued the suit property as per the market value.
9. On merits the defence of the defendant was that Sh. Narain Dass, the predecessor in interest of the defendant died as contractual tenant on 7 09.01.1996. At that time Narain Dass was paying rent @ Rs.17/- per month. The plaintiff was however, admitted as landlord of the premises. The defendant put forth his own version to the proceedings before the ld ARC. The defendant stated that the plaintiff had purposely filed a wrong application u/O 22 r 4 CPC, whereby impleading the defendant as the lone legal heir of deceased Narain Dass. In reply to the said application, the defendant had taken the specific plea that late Sh. Narain Dass had died as a contractual tenant, the alleged notice of termination of tenancy was never served upon them nor he had given any reply to the said legal notice through his advocate dated 12.04.1978. The defendant also contended in said reply that all legal heirs of late Sh. Narain Dass should be given notice for impleadment under an application u/O 22 r 4 CPC. The earlier order dated 9.12.96 was also with regard to issuance of notice to all of the LRs. However, Sh. C. K. Chaturvedi, the then ld ARC had modified said order vide his order dt. 27.01.1997, thereby restricting the notice of the application to the defendant herein only. Nonetheless, the said eviction petition was finally dismissed and the plaintiff cannot rely upon the said orders any more as the same does not legally exists. The construction given by the plaintiff to the affidavit of the defendant, his brother and Sh. Narain Dass before the competent 8 authority slum has also been denied as incorrect. It was claimed that all the LRs had tendered the rent to the petitioner , however, the same was not accepted for some oblique reasons. All the LRs had sent the rent by means of money order for the period 1.11.95 to 30.09.98 which was not accepted by the plaintiff. Dismissal of the suit along with compensatory costs u/s 35 A of CPC was sought.
10.Replication was filed by the plaintiff, whereby plaintiff had denied the averments made in the WS which was contrary to his claim as false and incorrect. The averments made in the plaint were reiterated and reaffirmed as true and correct.
11.On the pleadings of parties my ld Predecessor vide orders dated 02.11.99 had framed the following issues:-
(1)Whether suit is bad for non-joinder of necessary parties?OPD (2)Whether this suit is hit by res-judicata?OPD (3)Whether plaintiff has valued the suit properly for the purpose of court fees and jurisdiction?OPD (4)Whether plaintiff is entitled to decree of possession as prayed for?OPP (5)Whether suit of the plaintiff is barred by limitation?OPD (6)Whether plaintiff is entitled to recovery of mesne profits if so at what rate and at what interest?OPP.9
(7)Relief.
12.A pertinent development in the year 2000 may also be noted: ld counsel for plaintiff had prayed that the suit may be adjourned sine die on account of pendency of civil revision petition bearing no.480/98 before Hon'ble High Court. Acceding to the request made by the plaintiff, the suit file was consigned to record room. Thereafter, an application for reopening the case was moved and finally on 01.08.01 my ld predecessor had reopened the case pursuant to the order passed by Hon'ble High Court dated 6.7.2000, whereby liberty was granted to the plaintiff to appear before the Civil Court and prosecute his remedy.
13.In support of its case the plaintiff has examined Sh. Prithivi Narain Beri as PW 1. In examination in chief, the said PW has deposed as per the stand taken in the plaint. The site plan was proved as ExPW1/1. PW1 also deposed that he had got sent a notice on March, 1978. The said notice was sent through his counsel. The registered postal receipts have been proved as Ex.PW1/3 & Ex.PW1/5. AD card has been proved as Ex.PW1/4. Reply to said notice was proved as Ex.PW1/6.
14.Witness was again recalled for further examination. At that time the witness had tendered his evidence by way of affidavit which was 10 exhibited as Ex.PW1/A. He had proved the documents as, site plan as Ex.PW1/1, notice dated 17.03.1978 as Ex.PW1/2, postal receipts as Ex.PW1/3 and Ex.PW1/5, AD as Ex.PW1/4, reply dated 12.4.78 as Ex.PW1/6, Income Tax Return and Assessment Orders as Ex.PW1/7, counter foils of rent receipts as Ex.PW1/8 to Ex.PW1/12, application u/O 22 r 4 CPC as Ex.PW1/13, Ex.PW2/1 is reply to the said application, Ex.PW1/14 is rejoinder of the plaintiff to the reply of the defendant in the rent eviction case, Ex.PW1/15 is order dated 27.01.97 of Sh. C.K. Chaturvedi, ld ARC, Ex.PW1/16 is judgement/Order of Smt. Asha menon, ld ADJ in the previous case, Ex.PW1/17 is counter affidavit of Shri Narain Dass, Ex.PW1/18 is counter affidavit of Shri Rama Shanmar, Ex.PW1/19 is counter affidavit of Shri Som Nath filed in slum case, Ex.PW1/20 is order dated 6.07.2000 of the Hon'ble High Court in civil revision no.4080/1998, Ex.PW1/21 is dated 8.9.1998 is another notice of the plaintiff, Ex.PW1/22 to Ex.PW1/24 are postal receipts and acknowledgment of the said notice dated 08.09.1998 and Ex.PW1/25 is reply notice of the defendant to the notice of the plaintiff dated 08.09.1998. The plaintiff was cross- examined by ld counsel for defendant. During his cross-examination the said PW1 admitted that he does not possess any document showing that said Sh. Prithvi Narain Beri has ever sent any notice to 11 deceased Narain Dass. Ld counsel for defendant had asked some questions pertaining to the earlier demand notice. The same are material. PW stated that on Ex.PW1//4 his signatures were at point A. He also deposed that he does not know whether post man who got signature on Ex.PW1/4 was dead or alive and from which post office the registered envelop Ex.PW1/5 was sent. PW2 was LDC from record room Civil who brought record of the case titled as ''Sh. Prithvi Narain Beri Vs. Sh. Narain Dass'' i.e. bearing petition no.423/89. Similarly PW 3 was UDC from Slum Department and had brought the record slum pertaining to petition which was exhibited as Ex.PW1/17 to Ex.PW1/ 19. PW 4 was, Mr. Parma Nand Bhardwaj, Advocate .During his examination-in-chief he had deposed that Ex.PW1/2 was carbon copy of notice sent by him for and on behalf of Sh. Prithvi Narain Beri as per instructions. He also identified his signatures at point A. He also deposed that reply of notice was received at his address from Mr. Chaman Lal Sharma, Advocate and the same has been proved as Ex.PW1/6. He was cross-examined by Ld counsel for defendant and stated that the post man did not deliver the original of Ex.PW1/2 in his presence. He also admitted that Ex.PW1/2 to Ex.PW1/4 were not filed by him. He stated that these documents were received from his office by his client long back. He denied the 12 suggestion that no reply to his notice was received by him from Mr. Chaman Lal Sharma, Advocate. He also denied the suggestion that original of Ex.PW1/2 was not received by the addressee Sh. Narain Dass and similarly Ex.PW1/4 was not received in his office.
15.Defendant also tendered his affidavit by way of evidence which was exhibited as Ex.DW1/A. The stand taken in WS was deposed by defendant in his examination in chief by way of said affidavit. Defendant was cross examined by Sh. D.D. Dayani, Ld counsel for plaintiff. The said DW deposed that Sh. Narain Dass was the tenant in the disputed premises. He also admitted that none of the other LRs of late Narain Dass had filed any case against the plaintiff whereby claiming themselves to be tenant. He also admitted that he has no document to show that all the children of late Sh. Narain Dass were living in premises in between. He also admitted that there was no latrine in the tenanted premises. He also stated that he does not have any document to show that all the children of late Sh. Narain Dass were residing at the suit premises. He admitted that his brother Som Nath was residing at Ranjit Nagar, Delhi. He also admitted that there is no document to show that his mother was also living in tenanted premises. He admitted the filing of affidait before the Slum Court. 13
16.On the basis of aforesaid pleadings and evidence, Sh. D.D. Dayani, Ld counsel for plaintiff and Sh. Ramesh Chand, Ld counsel for defendant have argued the matter and drawn this Court's attention to the relevant part of pleadings and evidence.
17.I have given my thoughtful consideration.
18.The respective contentions of either side would be dealt with along with the finding on the issues.
Findings on issues no.2:-
19.It has been argued by Ld counsel for defendant that earlier eviction petition was dismissed by Ms. Asha Menon, ld ARC, hence, said decision operates as resjudicata. To elaborate his contention, ld counsel has argued that findings were given on the legal notice i.e. Ex.PW1/2 in as much as the said notice was duly considered by ld ARC and held that it was not proved. Further, the question of inheritance of all legal heirs was also decided by her in the said eviction petition, whereby she had not only taken into account the order passed by her ld Predecessor, Sh. C.K. Chaturvedi, ld ARC, 14 Delhi and thereafter, the earlier eviction petition was finally dismissed. In nut shell, the conclusions inferred by ld counsel for defendant were:
1.Notice Ex.PW1/2 was not proved
2.Order dated 27.11.1997 merged into final order of dismissal of eviction petition, plaintiff's civil revision petition against order dated 14.08.1997 (final order) was also dismissed by the Hon'ble High Court. Principles of resjudicata were pressed.
20.Ld counsel for plaintiff argued that present suit is a suit for possession on the basis of separate cause of action which accrued after death of late Sh. Narain Dass, the statutory tenant and after expiration of one year of death of Sh. Narain Dass. Ld counsel for the plaintiff has contended that the question on the basis of legal notice Ex.PW1/2 was whether Narain Dass died as statutory tenant was not substantially and directly involved in the previous litigation. For the purposes of Section 14 (1) (e) of the DRC Act, no notice was required. The question of inheritance was also not adjudicated under the previous petition in as much as the objective of order 22 CPC in that there should be parties/legal representatives to continue with the legal proceedings. The LR steps into the shoes of deceased and can only make the 15 defence as per the character of legal representative only. Ld counsel for plaintiff has also drawn this Court's attention to the order dated 06.07.2000 passed by Hon'ble High Court in Civil revision petition no.480/98. In the said revision petition Hon'ble High Court had granted liberty to plaintiff to continue with the proceedings in the civil suit. The said order by itself amounts to grant of leave by Hon'ble High Court whereby the plaintiff was allowed to continue with the proceedings in the Civil suit. Both the eviction proceedings and the present suit are based on different cause of action. For the purposes of convenience Section 11 is reproduced here as under:
11.Res judicata.- No Court shall try and suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they are of any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
21.The first and most important question is that the legal notice was not proved in the earlier eviction petition. The words used in the Section which are of utmost importance are directly and substantially in issue.
In the earlier eviction petition u/s 14 (1) (e) the ARC has to give a 16 finding on the (1)ownership of the premises, (2) the purpose of letting, (3) the bonafide need, (4) whether there is any alternate requirement accommodation with the petitioner.
22.There is no legal requirement of any notice. The question of legal notice is irrelevant in the eviction petition filed earlier u/s 14 (1) (e) of the D.R.C. Act. Since, there was no such requirement, the plaintiff was also not duty bound to even plead the same. The plaintiff had filed the legal notice Ex.PW1/2 on the reasoning that since after the death of the statutory tenant, ipso facto, the defendants became unauthorised occupants. The ld ARC had rightly concluded that such a notice was not proved , therefore, such an inference of Narain Dass becoming statutory tenant cannot be drawn. In these circumstances, the question of res judicata does not arise as there was no pleading, evidence, on the question of legal notice, consequently, there were no findings on the same which would have implied that the said aspect was ''heard''.
23.In so far as the reasoning that the aforesaid legal notice i.e. Ex.PW1/2 is exhausted and cannot be foundation of any further action more particularly as in the present suit, there is no such authority cited by ld 17 counsel for defendant. However, in this regard, reference can be made to of the judgment titled as ''Mohan Lal and others Vs. Sri Krishan and others'' decided on 08.08.1977 reported in All India Rent Control Journal, 1977 (2) by Hon.'ble Mr. Justice Awadh Bihari. The observations are in paragraph no.26 & 27 wherein it was held :-
26.Once a valid notice is served it is never exhausted. No law says that a notice is exhausted if the proceedings end in failure. The tenancy once determined is determined for ever. The landlord and the tenant may come together again and may be agreement, express or implied continue the relationship of landlord and tenant. That is another thing but the doctrine that a notice is exhausted is in my opinion unknown to the law of India as laid down in the Transfer of Property Act.
27.''Once a notice is sered determining the tenancy or showing an intention to quit on the expiry of the period of the notice the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting."
24.Thus, efficacy of the legal notice subsists, it can be made the basis/foundation of the suit for recovery as in the present case. Similar contention was dispelled by the Hon'ble High Court in case titled as ''Krishna Prakash Vs. Dalip Harley Mitra Chenoy, reported in AIR 2002, Delhi 81 in paragraph no.24 of the same''.
24.A plea has however been raised on their behalf that the 18 quit notice dated 10-10-1969 (Ex.PW-4/2) had exhausted with the previous litigation and before bringing the present suit a fresh notice should have been served. Learned counsel for the defendants/appellants conceded that there is no statutory provision requiring service of a fresh notice on the defendants/ appellants in the given situation. In ''Calcutta Credit Corporation Limited v. Happy Homes (Private) Limited'', AIR 1968 SC 471, the Hon'ble Supreme Court said: (AIR 474, para 6) ''Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting.''
25.The third contention raised by the Ld counsel for defendant was that the question of inheritance was decided by the ld ARC whereby she had declined the prayer of the plaintiff to treat the defendant herein as the only LR in her final order of the dismissal of the eviction petition.
26.The aforesaid contention is misconceived and not tenable in the eyes of law. Abatement as contemplated u/O 22 CPC implies a suspension/termination of proceedings in an action for want of proper parties. The basic objective of substitution of LR is that the lis should 19 be continued so that there is an adjudication and case should not suffer on the ground of lack of parties. The definition of legal representative u/s 2 (11) of CPC is vide enough/compendious enough to include persons who also inter meddle with the estate of the deceased. Further order 22 enjoins the Court in certain circumstances, like in O 22 r 4 A to appoint legal representatives for the purposes of the suit. The adjudication u/O 22 r 4 CPC by the ld ARC was only to the effect that eviction petition filed by the plaintiff herein should continue and should not suffer for any lack of parties. Further, the eviction petition has not been dismissed on account of any non joinder of necessary parties.
Thus this objection is also meritless.
This issue no.2 is decided against the defendant and in favour of plaintiff.
Issue No.3:
27.The plaintiff has valued the present suit for the purposes of court fees and jurisdiction at Rs.204/- for the relief of possession, Rs.612/- for the relief of damages mesne profits. The defendant has raised the objection that the suit is under valued and court fees should be leviable on the basis of market value of the suit property. In so far as the 20 present issue is concerned, this contention is squarely covered by the abovestated judgment.
The observations are as under:-
In ''Krishna Prakash v. Dilip Harel Mitra Chenoy'' reported in AIR 2002 Delhi 81 it was held: ''It appears to us that on ground of equity and legislative intention it could not have been contemplated that suits for the recovery of possession from the heirs of deceased statutory tenant should bear a Court fee at the full market value of the property. It should be appreciated that the landlord in the case of tenanted premises is deemed to be in possession of the premises though symbolically through his tenant. It is for this reason that when a suit is filed for recovery of possession against a statutory tenant Court fee is leviable under S. 7 (xi)(cc). This is the very nature of the present suit which has been filed to recover the premises from the heirs of the deceased statutory tenant. Simply because the statutory tenant has died and his heirs are in possession and had, therefore, to be impleaded to the suit, so that any defence which was open to the deceased tenant could be taken by him. It does not make it into a suit on the basis of title against rank trespassers. It still remains a suit for recovery of premises from a tenant after the determination of his tenancy. Statutory tenant had been inducted into the premises with the permission of the owner, the recovery of possession of that premises must continue to bear the same colour of the suit even when possession is sought to be recovered from the heirs of the deceased statutory tenant. To accede to the contention of Mr. Sabharwal would put a premium on the unauthorised occupation by the heirs because in many cases the high rate of Court-fee would act as deterrent and be prohibited for filing a suit if the ad valorem Court- fee has to be paid on the market value of the property. It appears to us that there is no justification for asking the plaintiff to pay Court-fee on the market value under 21 Sec.7(v)(e) of the Act and why he should not pay under Sec.7 (xi) (cc) of the Act when all that the plaintiff seeks to recover is the premises which had at one time been given on tenancy to the deceased statutory tenant. That is why we are of the opinion that in the present case the court- fee would be payable under S.7(xi) (cc) of the Act.'' The aforesaid clearly clinches the issue in favour of the plaintiff and against the defendant.
28.Facts of the present case and facts of the said case are identical, hence, the plaintiff has properly valued the suit for the purpose of Court fees and jurisdiction, hence, this issue is also decided against defendant and in favour of the plaintiff.
29.Issue No.1 and 4;-
Issue No.1 and 4 are inter connected and dependent upon findings as to legality/validity and the service of legal notice Ex.PW1/2 dated 17/03/1978.
30.I shall first take up the point of legality of the legal notice sent to the deceased tenant Narain Dass. It has been contended by Ld counsel for defendant that the legal notice allegedly served upon the defendant was defective and was not in confirmity with Section 106 of the T.P. Act. For the sake of convenience, Section 106 T P Act is reproduced hereunder:-
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S.106. Duration of certain leases in absence of written contract of local usage.-In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the party of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy' and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants as his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
31.Elaborating his contentions further Ld counsel for defendant has stated that legal notice was sent on behalf of Prithvi Narain Beri and not on behalf of Prithvi Narain Beri, HUF. He further contended that the legal notice should have been on behalf of the lessor i.e. the notice should have been expressly on the behalf of the Prithvi Narain Beri as Karta of HUF.
32.I may add here that the judgement passed by Ms. Asha Menon, ld ARC, conclusively decides the issue that Prithvi Narain Beri, HUF 23 was the owner/landlord of the premises. The said finding is binding on the defendant. The defendant has also admitted the plaintiff herein as his landlord.
33.The doctrine of construction of notice has to be noted. From the various legal pronouncement and guiding principles in this regard it is a settled law that a notice to quit must be construed not with the desire to find faults in it, which would render it defective but it must be construed as in a common sense way. The objective is to see that the notice should indicate in substance and reasonable clarity, the intention on the part of person giving it to determine existing tenancy at a certain time. In ''Bhagwan Dass Vs. Bhagwan Dass'', AIR 1977 SC 1120 the following principles were stated:
Now it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective but it must be construed ut res magis valeat quam pereat. The validity of a notice to quit, as pointed out by Lord Justice Lindley, L.J., in Sidebotham v. Holland,ought not to run on the splitting of a straw. It must not be read in a hyper-critical manner, nor must its interpretation be affected by padagogic pedanticism or over refined subtlety, but it must be construed in a common-sense way.
In these back ground, the objections of the defendant has to be seen.
34.The objection that the legal notice should have been sent on the 24 behalf of Sh. Prithvi Narain Beri, HUF and the same should have been expressly written is more of a technical objection. Vis a vis the tenant , there is no ambiguity that he was tendering the rent to the Prithvi Narain Beri himself. Prithvi Narain Beri was the Karta of the plaintiff. From the angle of the tenant it is sufficient compliance if the notice is sent on the behalf of Prithvi Narain Beri. The notice has been served on the instructions of Prithvi Narain Beri himself. It is immaterial that he has sent the legal notice as Karta of the HUF or in his individual capacity. The intention to determine the tenancy is apparently manifested, same is decipherable from the Ex.PW1/2. The tenancy is also terminated from the last day of month. The said objection is untenable and is accordingly rejected.
1. The second contention raised by the defendant was that the legal notice was given in the year 1978 and had exhausted by the year 1990. Another contention which was inter connected was that the earlier legal notice was used in the eviction petition which was dismissed by Ms. Asha Menan, then ld ARC. Hence, he said legal notice cannot be the subject matter of the present suit.
2. The aforesaid objection has been dealt in the preceding paragraph on findings of issue no.2. Same need not to be reiterated.
3. The third and most hotly agitated point raised by the Ld counsel for 25 defendant was that the notice was never served upon the defendant. He has read the cross examination of PW 4 Sh. Parmanand Bhardwaj and submits that the service of legal notice has not been proved. Ex.PW1/2 is the legal notice dated 17.03.1978. The postal slips are Ex.PW1/5 respectively, the AD card which has returned back and bear the signature of deceased Narain Dass (Disputed) is Ex.PW1/4. The reply of the legal notice allegedly sent by the decease Narain Dass through his counsel Sh. Chaman Lal, Advocate is Ex.PW1/6. Defence of the defendant is of total denial. Defendant clearly states that no such notice was received.
4. Per contra the plaintiff has examined Sh. P.N. Bhardwaj, Advocate as PW 4 who has deposed that the legal notice was sent by him on the instructions of Mr. Prithvi Narain Beri.
5. During his cross examination, he stated that Ex.PW1/2 to Ex.PW1/4 were not filed by him and these documents were received in his office long time back. He denied the suggestions given by the Ld counsel for defendant.
6. The plaintiff has also deposed that these notices were dispatched by 26 registered post and the same have been duly served upon the defendant in normal course as they were sent by registered AD cover, the AD card bearing signatures of the defendant had returned, therefore, the present objection is not sustainable. Ex.PW1/4 was the returned AD card, which was signed by Sh. Narain Dass. The defendant had denied that any such legal notice was received or any legal reply to the notice was served through Sh. C.L. Sharma, Advocate. In this regard Section 27 of the General Clauses Act and Section 114 of the Evidence Act is important. Both these sections stipulates that a presumption can be raised if a notice is dispatched by prepaid, correctly addressed, envelope by registered post. The defendant had denied the receipt of the same and its consequential reply. Section 27 and Section 114 of the Evidence Act comes to the aid of plaintiff. There is no cross examination of PW1 or PW 4 that the RC slips did not bear the correct address of late Sh. Narain Dass. Once the plaintiff has put the letter correctly addressed with adequate postal stamp through registered cover and there is testimony of this effect, a presumption can be raised in favour of the plaintiff that such notice was properly and duly served. The aforesaid presumption is 27 rebuttable and the onus shifts upon the person denying the receipt of the same that the same was either not received by him or at the time of receipt, he was not present/out of station or for any other reason. There is no cross examination on this aspect on behalf of defendant of PW 1. Merely by saying that the notice has not been received, is not sufficient. After approximately 25 years, it would have been a futile exercise to call the post man. The notice was properly addressed & stamped, hence, presumption of service can be raised safely. The defendant had to rebut the dame. In this regard, the observations by our own Hon'ble High Court in following judgement are pertinent and clinches the issue. Vinod Kumar & Ors Vs. Bk. Sachdev, 1995, Rajdhani Law Reporter 431 (DB):-
The basic law of presumption of service of notice is permitted u/S 27 of General Clauses Act and also u/S. 114 of Evidence Act. The earliest case on the issue of drawing of presumption of service under such circumstances is probably the case of Hari Har Bannerjee vs. Ram Shashi Roy; AIR 1918 Privy Council 102, wherein it was held that if a letter properly directed, containing a notice to quit, is proved to have been put in the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender had taken the precaution to register. In the case of M/s. Madan vs. Wazir J.V. Chand the Apex Court has held that all that a landlord can do is to comply with the provision is to post a 28 pre-paid registered letter (A.D. or otherwise) containing the tenant's correct address and that once the same is done and a letter is delivered to the post office, he has no control over it and that it can then be presumed to have been delivered to the addressee u/S.27 of the General Clauses Act. The above being the settled law and in the present case it having been proved by the plaintiffs that a notice as envisaged u/S. 106 of the TPA having been issued by the plaintiffs to the concerned defts. at their residential address in accordance with law, it can well be presumed under the aforesaid provisions-statutory as well as case laws that the said notices have been duly served on the said defts.
41.Thus on the strength of the registered notice itself, dehors the alleged reply of Sh.C.L. Sharma, Advocate, it can be safely concluded that the legal notice Ex.PW1/2 has been served.
42.However, in this matter, the AD card which bears the signature of late Narain Dass had returned back, which suggests that the legal notice was not only served, but was personally served upon late Sh. Narain Dass. The signature of late Sh. Narain Dass are there on the AD card.
43.The plaintiff's witness has testified that the said AD card had returned back. The defendant should have either examined any hand writing expert or have given any evidence that the said AD card does not bear the signatures of late Sh. Narain dass. In these circumstances, the 29 objections of the defendant with regard to non service of the legal notices are meritless and hence, rejected.
44.Since, the tenancy of the defendant's predecessor has been duly terminated by way of aforesaid notice, late Sh. Narain Dass, became a statutory tenant. The devolution of the interest of the statutory tenant is governed by the provisions of Section 2(l) of the DRC Act. The relevant extract is also reproduced herein:-
2(l) 'tenant' means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes-
(i)a sub-tenant;
(ii)any person continuing in possession after the termination of his tenancy; any
(iii)in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation 1 and Explanation II to this clause, such of the aforesaid person's-
(a) spouse,
(b) son or daughter, or, where there are both son and daughter, both of them, ( c) parents,
(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include,-
(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be reopened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976);
(B) any person to whom a licence, as defined by Section 52 of the Indian Easements Act, 1882 (5 of 1982), has been granted.30
Explanation 1.-The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:-
(a) First, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
( c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and
(d) fourthly, his daughter-in-law being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased up to the dae of his death.
Explanation II.-If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall became extinguished.
45.The aforesaid law is clear and categorical that the tenancy is inheritable if the person satisfies the test of (1) ordinarly residing with the deceased at the time of his death (2) was financiallly dependent upon the deceased .
31
46.Admittedly, in the affidavits given by the Sh. Narain Dass and the defendant herein before the competent authority slum, i.e. Ex.PW1/17 and Ex.PW1/18, it has been clearly admitted by the predecessor in interest, defendant, that the other sons and daughter of late Sh. Narain Dass were residing in the village at Amethi, Sultan Puri, Uttar Pradesh and wife of late Sh. Narain Dass was also residing at the village. The defendant in his counter affidavit has admitted that he was residing in the suit property and was working in DDA and he was only residing with the late Narain Dass in the premises in dispute, rest all the relations of the defendant were at the village and not residing at the suit property. The aforesaid affidavits have been admitted by the defendant.
47.Further, during his cross examination, the said defendant had admitted that other legal heirs come to the suit premises to visit, however, he has no document to show that other legal heirs were residing in the suit premises. He further admitted that he had filed no documents to show that his mother was living in suit premises. He also admitted that his brother was financially independent and residing at Ranjit Nagar.
32
48.The aforesaid testimony clearly and conclusively establishes that in the premises only the defendant and his family members were residing. The admission made by Sh. Nrain Dass before competent authority slum is binding upon the defendant. The testimony of defendant, non filing of any document of residence of other LR of late Narain Dass, viz ration card, election card etc, clearly show that only the defendant was residing at the suit premises with late Narain Dass and other LRs were not residents at suit premises.
49.In view of the aforesaid evidence, only Rama Shankar is entitled to inherit the tenancy rights of late Sh. Narain Dass as he was only ordinarily residing with him at the time of his death.
50.Furthermore, the extent of accommodation of the suit premises is so small that it automatically excludes the possibility of their being large number of family members residing in the same. It is admitted by the defendant that there is no latrine in the suit premises. Thus, otherwise it is also inconceivable that all LRs were residing in the suit premises. The Kothri (suit property) is measuring only 6:10''X9:9''. 33
51.It is admitted by the defendant that he is gainfully employed in DDA. The question of financial dependency does not arise, hence, the protection is extended till one year after the death of late Narain Dass. After 09.01.1997 the defendant is an unauthorised occupant in the suit premises.
52.Issue no.1 and 4 are hence decided in favour of the plaintiff and against the defendant.
53.Issue no.5:
The said issue is more of an academic question. Ld counsel for defendant has relied upon article 67 of the Limitation Act to suggest that the suit for possession should have been filed within 12 years from the date of legal notice. No such law has been cited by Ld counsel for defendant in his support to further his contention.
54.Secondly, applicability of article 67 to the facts in hand does not arise. The cause of action to file the present suit on the basis of averments made in the plaint arose after one year of the death of statutory tenant i.e. on 09.01.1997. The present suit was instituted on 03.09.1999. By no stretch of imagination it can be said to be time 34 barred. Hence, that issue is decided in favour of plaintiff and against the defendant.
55.Issue No.6.
The defendant became an unauthorised occupant after 10.01.1997 i.e. after expiry of one year of the death of late Narain Dass. The plaintiff has restricted the damages and mesne profits at the rate of 17/- per month itself. There is no evidence adduced by defendant that they have actually paid the rent to the plaintiff. Thus, for the period preceding 3 years of filing of suit the plaintiff is entitled to the recovery of Rs.612/-. I am not inclined to give any interest on this amount as the defendant had expressed his intention to pay the same. However, same was not accepted by the plaintiff.
56.In so far as the relief of mesne profits is concerned, the plaintiff has demanded a sum of Rs.1500/- as mesne profits per month. Admittedly, the property is a Kothri without any toilet. There is no independent evidence adduced by the plaintiff on the aspect of mesne profits. Nonetheless, in this aspect Court can take into account by way of judicial note the escalating rentals. Some kind of a fair amount can be given. In this aspect some guess work is permitted. Reference in this 35 regard can be made to the decision of ''D.C. Oswal Vs. V.K. Subbiah'' reported in AIR, 1992 SC 104, the said decision was followed by our own Hon'ble High Court in case reported as 1995 RLR 431 DB (mentioned Supra).
57.Considering the entire evidence on record and keeping in view the fact that tenancy is very old tenancy, I am of the view that mesne profits at the rate of Rs.500/- per month since the filing of the suit till the handing over the possession of the suit property would sub serve the ends of justice.
58.In these circumstances, the suit of the plaintiff is decreed.
59.Relief:
The plaintiff is entitled to the relief of possession of the suit property as per Ex.PW1/1 as particularly shown in red. Plaintiff is further granted a decree of Rs.612/- as recovery of damages and mesne profits. A decree of Rs.500/- per month is granted as mesne profits from the date of institution of present suit i.e. 01.02.1999 till its realization. Deficient court fees be paid. The decree of mesne profits would be executable on filing of deficient court fees.36
1. Keeping in view the fact that Ld counsel for defendant Sh.Ramesh Chand has very ably and lucidly argued the matter on nearly on each and every point and very ably assisted the court, there shall be no order as to cost. Decree sheet be drawn accordingly. Suit file be consigned to record room after necessary compliance.
Announced in the open court on 21/05/2007 (SUMIT DASS) Civil Judge:Delhi