Delhi High Court
Roger Enterprises Private Limited vs Smt. Renu Vaish on 13 January, 1998
Equivalent citations: 1998IAD(DELHI)976, 71(1998)DLT617, 1998(44)DRJ322, 1998 A I H C 1313, (1998) 44 DRJ 322, (1998) 1 RENCR 539, (1998) 1 RENTLR 602, (1998) 71 DLT 617
Author: Arun Kumar
Bench: Arun Kumar, M.S.A. Siddiqui
ORDER Arun Kumar, J.
1. This appeal is directed against the judgment of the learned Additional District Judge, Delhi dated 17th October, 1997 whereby a suit for possession and mesne profits and arrears of rent with respect to flat No. 106, First Floor, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi was decreed. The respondent filed the said suit as owner/landlord of the premises against the appellant herein. Admittedly the premises was let out by the respondent to the appellant vide a registered lease deed dated 15th October, 1973. The rent of the premises as per the lease deed was fixed at Rs. 3,676.75p per month. According to the respondent a notice, dated 2nd February, 1996 was issued by her advocate whereby the tenancy of the appellant was terminated and the appellant was called upon to hand over the vacant possession of the premises. The suit was filed on or about 20th March, 1996.
2. The learned counsel for the appellant urged the following points: (i) the civil court had no jurisdiction to deal with the matter because the rent of the premises was below Rs. 3,500/- per month and, therefore, the provisions of the Delhi Rent Control Act applied: (ii) the notice dated 2nd February, 1996 was not valid as it did not allow 15 clear days as envisaged under section 106 of the Transfer of Property Act; (iii) the award of damages/manse profits by the trial court was wholly arbitrary and illegal.
3. Regarding the argument of absence of jurisdiction of the civil court, our attention was drawn to para 2 of the plaint wherein it is stated that the rent of the premises is Rs. 3,676.75p per month including property tax, but excluding all other charges such as water and maintenance etc. The learned counsel submitted that it is plaintiff's own case that the said amount of monthly rent is inclusive of property tax. The property tax for the premises was bound to be more than Rs. 176.75p per month and if that element is taken out from the figure of Rs. 3,676,75p mentioned in para 2 of the plaint, the rent will be below Rs. 3,500/- per month, taking the case outside the jurisdiction of the civil court. To rebut this argument raised on behalf of the appellant, the learned counsel appearing for the respondent has drawn our attention to at least three aspects. First, reference has been drawn to the lease deed which is an admitted document Para 1 of the covenants undertaken by the lessee reads: "to pay the monthly rent of Rs. 3,676,75p hereby reserved on or before the 7th day of each English calendar month." Secondly, it is submitted that there is no plea in the written statement filed by the appellant before the trial court that the court had no jurisdiction to deal with the matter because the rent of the premises was below Rs. 3,500/- per month. According to the learned counsel for respondent, the defendant rather admitted in the written statement that the rent was above Rs. 3,500/- per month. To make good this submission reference was invited to para 7 of the plaint where it is stated:
"As already mentioned hereinbefore, the rent of the premises in suit since the inception of the tenancy has been and in any case has been lastly paid by the defendant herein at the rate of Rs. 3,676.75p (Rupees three thousand six hundred seventy six and paise seventy five only) per month, including property taxes, but excluding all other charges such as water and maintenance etc. Manifestly, it always exceeded Rs. 3,500/- (Rupees three thousand five hundred only)."
4. In the written statement the contents of Para 7 of the plaint have been admitted as corect. From this it is deduced that the last line of para 7 of the plaint where it is stated that the rent always exceeded Rs. 3,500/- per month has been accepted by the defendant. Thirdly, it is submitted on behalf of the respondent that by stating in the plaint that the rent of Rs. 3,676.75p per month was inclusive of property tax, the only idea was to convey that the tenant did not have to pay anything by way of property tax. It is also submitted that in any case under the law the landlord cannot charge property tax from the tenant. The liability to pay property tax is that of the landlord. So far as the tenant is concerned, he has to pay Rs. 3,676.75p per month by way of rent and nothing separately by way of property tax. To explain the meaning and purport of the word 'inclusive' the learned counsel has relied on a judgment of this court reported in 1972 RCR 181 [Shri Bodh Raj Khanna (Deceased) through his legal representatives Shri Moti Sagar Khanna etc. Vs. Shri Sant Saran Bhalla], where the concept of inclusive and exclusive has been considered and explained.
5. We have considered the submission made on behalf of the respondent. It is clear that the rent of the premises was Rs. 3,676.75p per month. The defendant was admitted in the written statement that the rent of the premises was above Rs. 3,500/- per month. No plea was taken in the written statement that the court had no jurisdiction to try the suit keeping all these aspects in view, we find no merit in the, contention of the appellant that the civil court had no jurisdiction to try the suit because the rent was below Rs. 3,500/- per month.
6. Coming to the second argument regarding validity of the notice, the case of the appellant is that the notice is dated 2nd February, 1996. According to the learned counsel for the appellant, postal receipts which have been placed on record show that the notice was posted on 9th February, 1996. Allowing reasonable time to the postal authorities for service, the notice could not have been served earlier to 17th February, 1996 which does not leave clear fifteen days. The learned counsel for the appellant relied on a statement made by the representative of the defendant as DW-1 that the notice was put up to him on 17th February, 1996. We have perused the postal receipts as well as the slip regarding sending the notice under postal certificate on which the post office stamps are there. The post office stamps on the postal certificate slip clearly show the date of despatch as 5th February, 1996. On the registration slip also the postal stamp shows the date as 5th February, 1996. The learned counsel for the appellant tried to read the date given on the postal receipt as 9th February, 1996 but this is wholly untenable. The formation of '9' in '96' is clearly shown to be much different from what is sought to be read as '9' as the date. In the same stamp figure '9' cannot be written differently. If the notice was posted by registered post on 5th February, 1996 and the addressee is local, there is no reason to believe that the notice would have been served beyond 14th February, 1996. The learned counsel for the respondent has relied on a judgment of this court [Sudhir Kumar Gupta Vs. Varshawati Sharma and Others] in this behalf. The address of the addressee is not in dispute. The burden to show that the notice was received on 17th February, 1996 or later was on defendant. The statement of DW-1 does not help the appellant in this behalf. If one reads the statement of DW-1 which is relied upon by the learned counsel for the appellant to urge that the notice was received by the appellant on 17th February, 1996, the contention raised on behalf of the appellant is not sustainable. The witness has only stated that the notice was put up before him on 17th February, 1996. In the examination-in-chief the witness stated that notice was received in his office and was sent to the witness on 17th February, 1996. The witness does not give the date of receipt of notice in the office. He only refers to the notice being put up to him by his office on 17th February, 1996. In these circumstances, the best course open for the appellant would have been to produce the envelope in which the notice was contained to show the date of delivery because the envelope normally has such a stamp. For non-production of the envelope, inference has to be drawn against the appellant. Similarly the appellant must be maintaining a dak register which has not been produced which could have shown that the envelope containing the notice was received on a particular date. The appellant failed to produce the relevant evidence which was in its possession in this behalf and, therefore, has to suffer the consequences. Yet another aspect to be noted in this connection is that in cross-examining the witnesses of the plaintiff on this aspect, the suggestion has been put that the notice was received by the defendant/appellant on 26th February, 1996. This only shows that the appellant has been shifting its stand regarding the date of receipt of notice from time to time. It is for this reason apparently that the appellant did not take any specific stand in the written statement about the date of receipt of the notice. There is nothing in the written statement filed by the appellant about the date on which, according to the appellant, the notice was received by it. Thus this plea appears to be a clear afterthought and is not worthy of any credence.
7. On the question of award of damages, the learned counsel for the appellant submitted that the trial court had awarded damages at a very high figure based on a lease deed produced by the respondent landlord which had been entered into with another tenant. It is not disputed that it was a registered lease deed with respect to another property in the same area though that property is a residential property whereas the property in the present case is a commercial property. Rents of commercial properties are always comparatively higher. It was also urged in this behalf that the appellant was under a belief that the inquiry with respect to the rate of damages/manse profits will be held by the trial court separately and, therefore, the appellant did not have proper opportunity to adduce evidence on this aspect. This argument has no basis at all. The trial court framed several issues in this case. The issue relevant for the point in question is issue No. 6 which is as under: "Whether the plaintiff is entitled to mesne profits? If so at what rate, and for what period?" After framing all the issues parties went to trial. The plaintiff/respondent led her evidence. The appellant also adduced evidence and examined two witnesses. No evidence was led by the appellant to rebut the evidence led by the plaintiff/respondent regarding the rate of damages/manse profits. There is no crossexamination of the plaintiff's witness on the point of rate of damages/manse profits. This shows that the defendant/appellant never challenged the damages/manse profits as stated by the plaintiff in her evidence before the court. When there is no rebuttal to the rate of damages/manse profits suggested by the plaintiff, the defendant cannot make an issue about it at this stage. On the aspect of the trial court awarding damages/manse profits for the mezzanine floor at the same rate as that for the main floor even though in the lease deed the rate of rent for mezzanine floor was agreed to be half of the rent of the main floor, the learned counsel for the respondent stated across the bar that the respondent will not have any objection to the decree being modified in this behalf on a basis which may be considered reasonable by this court. In fact he left it to the discretion of this court to modify the decree with respect to the award of damages. In view of this concession it is ordered that for the area of the mezzanine floor which is admittedly 413 sq. ft., the rate of damages/manse profits as awarded in the decree under challenge before us will be read as Rs. 35/- per sq. ft. per month instead of Rs. 70/- per sq. ft. per month as held by the trial court. The other directions contained in the judgment under appeal will remain the same except that for the mezzanine floor comprising of the area 413 sq. ft. the rate of rent will be taken as Rs. 35/- per sq. ft., per month. Subject to this modification in the decree of the trial court, this appeal is dismissed. There will be no orders as to costs.