Delhi District Court
Meena Bhatia W/O Sh. Sushil Kumar Bhatia vs Shri Rakesh Kumar Sharma on 16 May, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 94/11
Unique ID No. 02401C0320232011
MEMO OF PARTIES
1. Meena Bhatia W/o Sh. Sushil Kumar Bhatia,
R/o B213, Priya Darshani Vihar, Laxmi Nagar, Delhi - 110092
2. Deepa Gupta D/o Sh. Ashok Kumar Gupta
W/o Sh. Sachin Gupta,
R/o 5825, Jogi Wara, Nai Sarak, Delhi
3. Sachin Gupta S/o Late Murari Lal
R/o 5825, Jogi Wara, Nai Sarak, Delhi 110006
...........Plaintiffs
VERSUS
Shri Rakesh Kumar Sharma
S/o Late Sh. Ram Dayal and Smt. Bharpai Devi,
R/o Ground Floor of H. No. 5770, Jogiwara,
Nai Sarak, Delhi 110006
..........Defendant
Date of institution of the Suit: 19.07.2011
Date on which judgment was reserved: 22.04.2014
Date of pronouncement of Judgment: 16.05.2014
SUIT FOR POSSESSION RECOVERY OF DAMAGES FOR USE AND
OCCUPATION AND FOR PERMANENT INJUNCTION
Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 1/34
JUDGMENT:
1. This judgment shall decide the plaintiffs' suit for possession, recovery of damages for use and occupation and permanent injunction filed against the defendant.
2. The suit had been initially filed by the plaintiff Sh. Shiv Shanker Rustagi but during the course of the suit proceedings, an application was moved U/o 22 R 10 CPC by the applicants i.e. the present plaintiffs averring that the property in question had been transferred to them by the plaintiff vide two registered sale deeds dated 12.07.2012. The plaintiff Sh. Shiv Shanker Rustagi affirmed the same and exhibited the sale deeds as Ex. P1 and P2 respectively and accordingly the said application was allowed on 20.09.2012 and the present plaintiffs were substituted in place of erstwhile plaintiff Sh. Shiv Shanker Rustagi.
3. The plaintiffs' case is that one Sh. Ram Dayal, father of the defendant was the tenant under the plaintiff (reference herein is made to the erstwhile plaintiff i.e. Shiv Shankar Rustagi) in respect of two Baithaks (sitting rooms) on the ground floor of the property bearing no. 5770, Jogiwara, Nai Sarak, Delhi. At the time of letting to Sh. Ram Dayal the ground floor of the property was occupied by other tenants also who were using latrine, bath room and open courtyard being common amenities for all the tenants. Later on the Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 2/34 other defendants vacated their respective portions and the said latrine, bath room and courtyard were used by the family members of Sh. Ram Dayal and the defendant and his family members. The suit premises was shown in red in the site plan annexed to the plaint.
4. The plaintiff contended that the contractual tenancy of Sh. Ram Dayal was duly terminated by the plaintiff by notice dated 08.02.1993 sent to him through Sh. Parmeshwar Dayal Gupta (Advocate). The tenancy of Sh. Ram Dayal used to commence from Hindi Vikrant Samwat Calender month i.e. Badi Ekam of each month and ending on Sudi 15 of the same month. Sh. Ram Dayal died on 15.06.2005 and U/s 2 (l) of the Delhi Rent Control Act , 1958 only his widow late Smt. Bharpai Devi who was residing with the deceased and was financially dependent upon him at the time of his death inherited the tenancy rights till her lifetime. During the lifetime of Smt. Bharpai Devi, a notice dated 05.03.2008 was sent to her on the ground of non payment of rent and she was also informed about her status being simply of a statutory tenant. Reply dated 24.03.2008 was received from her counsel. The plaintiff also sent a registered letter dated 16.04.2008 to Smt. Bharpai Devi inter alia stating therein that the rent sent by her was being received without prejudice to the rights of the plaintiff and subject to notice dated 05.03.2008. It was further stated that acceptance of subsequent rent would Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 3/34 be subject to notice dated 05.03.2008 and without prejudice to the rights of the plaintiff.
5. The statutory tenant Smt. Bharpai Devi mother of the defendant died on 28.01.2011 and the defendant had not inherited the tenancy right or any right to live in the premises in dispute. Only the defendant along with his family members was in possession of the suit premises and w.e.f. February, 2011 the defendant had become illegal occupant qua the suit premises. The plaintiff requested the defendant to vacate the premises in the first week of May, 2011 but the defendant refused to vacate the premises. The plaintiff thereafter sent notice dated 10.05.2011 to the defendant informing about his status and asked the defendant to pay damages of Rs. 500/ per month w.e.f. February, 2011. The said notice was duly received but no reply was given. After receiving the notice dated 10.05.2011, the defendant was trying to part with possession of the premises to some other person which was noticed by the plaintiff himself when he saw the defendant showing the premises to some unknown person at about 2.00 p.m. on 17.07.2011. When the plaintiff asked the defendant as to why he was showing the property to unknown persons he openly threatened that he was going to part with possession of the premises to some other person for a handsome amount of consideration. The plaintiff thus sought the following reliefs through the Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 4/34 present suit "(a) A decree for possession of the ground floor of property no. 5770, Jogiwara, Nai Sarak, Delhi - 110006 as shown in red colour in the site plan, may kindly be passed in favour of the plaintiff and against the defendant.
(b) A decree for Rs. 2,000/ as damages for use and occupation up to June, 2011 be also passed in favour of the plaintiff and against the defendant.
(c) Future mesne profit/damages for use and occupation at the rate of Rs. 500/ (rupees five thousand) per month or at such higher rate as may be prevailing from time to time till the date of ejectment together with interest at 24% per annum.
(d) A decree for permanent injunction may also be passed restraining the defendant, his family members, etc. from subletting, assigning or in any manner parting with possession of the ground floor of premises No. 5770, Jogiwara, Nai Sarak, Delhi as shown in red colour in the site plan to any person whatsoever except to the plaintiff.
(e) Cost of the suit may also be awarded to the plaintiff and against the defendant."
6. The defendant filed the written statement. The defendant took the preliminary objection that the suit was false and bad for non joinder of necessary parties since all the heirs of deceased Smt. Bharpai Devi and Sh. Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 5/34 Ram Dayal had not been impleaded in the present suit. It was contended that the suit was barred U/s 50 of the Delhi Rent Control Act and further the suit was bad for misjoinder of cause of action and it was contended that the relief of permanent injunction was barred U/o 2 R 4 CPC.
7. In the reply on merits, defendant submitted that Sh. Ram Dayal was a tenant in respect of two Baithaks and one bath room situated on the ground floor of property bearing no. 5770, Jogiwara, Nai Sarak, Delhi. It was denied that the ground floor of the property was occupied by other tenants who were using the latrine, bathroom and open courtyard being the common amenity. It was submitted that the remaining portion of the ground floor was let out for godown purpose and there was no residence on the ground floor except that of Sh. Ram Dayal. The latrine was common for all the occupants but the bath room was under the exclusive tenancy of Sh. Ram Dayal and some part of the tenanted premises and the said bath room was never used by any person. It was denied that the contractual tenancy of Sh. Ram Dayal was duly terminated by the plaintiff vide notice dated 08.02.1993. It was averred that the alleged notice was not served upon Sh. Ram Dayal and receipt and AD were manufactured and forged. It was contended that after the demise of Sh. Ram Dayal the tenancy devolved upon all the heirs of Sh. Ram Dayal including the defendant and was inherited by the defendant along Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 6/34 with other heirs of the deceased Sh. Ram Dayal.
8. The defendant denied that during the lifetime of Smt. Bharpai Devi the statutory tenant, a notice dated 05.03.2008 was served upon her on the ground of non payment of rent and she was informed about her status being of a simple and statutory tenant. It was submitted that the alleged notice served on Smt Bharpai Devi was uncalled for and the same was duly replied. The defendant denied that any registered letter dated 16.04.2008 had been served upon Smt. Bharpai Devi. It was denied that Smt. Bharpai Devi died as a statutory tenant. It was contended that the tenancy of Sh. Ram Dayal was never validly terminated. Further, it was averred that the defendant was under no obligation to comply with the notice dated 10.05.2011 and there was no need to give any reply to the same. The alleged incident of 07.07.2011 was denied and it was prayed that the suit be dismissed.
9. In the replication the plaintiff maintained that the other heirs of Smt. Bharpai Devi and Sh. Ram Dayal were not necessary parties to the suit as the suit property was only in possession of the defendant and his family members. It was submitted that in reply dated 24.03.2008 no plea had been taken that the bath room was also in the tenancy of Sh. Ram Dayal and even otherwise vide the present suit the plaintiff had claimed possession of the Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 7/34 said bath room also which was earlier in the common use and now in the use of defendant and his family members. The allegations raised in the written statement were basically denied and those of the plaint were reiterated.
10. On 02.09.2011 the following issues were framed in the present case.
1. Whether the tenancy of Sh. Pandit Ram Dayal was validly terminated by plaintiff? OPP
2. Whether the jurisdiction of civil court is barred by U/s 50 of Delhi Rent Control Act? OPP
3. Whether the plaintiff is entitled for a decree of possession as prayed for? OPP
4. Whether the plaintiff is entitled for decree of damages/mesne profit as prayed, if yes, at what rate and for what period? OPP
5. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
6. Relief.
11. The plaintiff (erstwhile plaintiff Sh. Shiv Shankar Rustagi) in evidence examined himself as PW1. On the other hand defendant examined himself as DW1.
12. Upon conclusion of the trial final arguments were advanced by counsel for the parties.
Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 8/34
13. I have heard the final arguments advanced by counsel for the parties, perused the judgments cited at Bar as well as scrutinized the court record.
14. My issue wise findings are as follows Issue No. 1 Whether the tenancy of Sh. Pandit Ram Dayal was validly terminated by plaintiff? OPP
15. It is an admitted fact that Sh. Ram Dayal was the tenant of PW1 however the defendant disputed that Sh. Ram Dayal was a statutory tenant. PW1 in his affidavit of evidence Ex. PW1/A deposed that the contractual tenancy of Sh. Ram Dayal was terminated by him vide legal notice dated 08.02.1993, which was exhibited as Ex. PW1/2, while the postal receipt thereof and AD Card were exhibited as Ex. PW1/3 and Ex. PW1/4 respectively, and PW1 also deposed that he identified the signatures of Sh. Ram Dayal in 'Mundi' script at point A on Ex. PW1/4. The defendant in the written statement denied that the notice Ex. PW1/2 was served on Sh. Ram Dayal and alleged that the receipt and AD were manufactured. The cross examination of PW1 and DW1 on this score must be contrasted; while PW1 in his cross examination denied the suggestion that the notice Ex. PW1/2 was never served upon Sh. Ram Dayal or that Ex. PW1/3 and Ex. PW1/4 were forged and fabricated documents, DW1 in his cross examination admitted that his address as mentioned in Ex. PW1/2 and Ex. PW1/3 was the correct Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 9/34 address of the suit property. DW1 deposed that his father used to sign in Hindi but deposed that he had no idea whether his father used to sign in 'Mundi' script also. He further deposed evasively that he had no idea if Ex. PW1/4 (i.e. the AD Card) bore the signatures of his father at point A. Thus while the defendant could not even specifically deny that the signatures at point 'A' were not of Sh. Ram Dayal in cross examination, PW1 in his cross examination stood firm to his stand that the signatures were of Late Ram Dayal. The defendant did not even produce any other witness who could have deposed that the signatures at point 'A' on the AD Card were not of Late Ram Dayal's and his own evasive testimony in this regard severely damaged his defence of the legal notice Ex. PW1/2 not having been received by Late Ram Dayal or the postal receipt and AD Card being fabricated documents. Admittedly, Ex. PW1/2 legal notice sent vide registered AD bears the correct address of the suit property, and the same address is mentioned on the AD Card Ex. PW1/4. Thus a presumption is raised U/s 27 of the General Clauses Act that the notice sent at the correct address by registered post was validly served. The defendant has led no cogent evidence to rebut this presumption. The defendant also failed to prove his allegation that the legal notice and postal receipt alongwith AD Card were forged and fabricated, which remains a bald averment. The positive testimony Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 10/34 of PW1 that the signatures on the AD Card were of Late Ram Dayal has not been successfully controverted by the defendant by adducing any cogent evidence or even through his own testimony. The plaintiffs relied on Parwati Bai Vs. Radhika JT 2003 (5) SC 34 wherein it was observed by the Hon'ble Supreme Court that when a notice given by the landlord in terms of the T.P. Act was not challenged on any ground, the courts erred in refusing to decree the suit for eviction. Late Ram Dayal apparently did not challenge the notice Ex. PW1/2 since no reply to the same by Late Ram Dayal has been placed on record by either party thus there is no document on record showing demure on behalf of Late Ram Dayal to prove that he ever disputed the extent of the tenancy.
16. An important argument of the defendant which must be dealt with while deciding this issue is regarding the dispute raised by the defendant as regards extent of the tenancy. The defendant in the written statement has raised the defence that Sh. Ram Dayal was a tenant in respect of two Baithaks and one bath room situated on the ground floor of the property in dispute and that while the latrine was common for all the occupants, the bathroom was under
the exclusive tenancy of Sh. Ram Dayal. Ld. Counsel for the plaintiff argued that the counterfoils of rent receipts Ex. PW1/17 (colly) showed the tenanted premises to be two baithaks for residence purpose, while the defendant had Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 11/34 not adduced any documentary evidence to prove that the bathroom was also under the exclusive tenancy of Late Ram Dayal. Ld. Counsel for defendant on the other hand contended , referring to the cross examination of PW1 that PW1 had himself deposed that the premises shown in red colour in the site plan was under the tenancy of Sh. Ram Dayal and that the present suit had been filed in respect of the said premises shown in red in Ex. PW1/1. He also pointed out to the following testimony of PW1 "It is correct that premises shown in red in Ex. PW1/1 was used by Sh. Ram Dayal exclusively alongwith his family and now his family is using exclusively."
17. The site plan Ex. PW1/1 shows two Baithaks, one bathroom and open courtyard in red colour . Ld. Counsel for defendant argued that PW1 had in his cross examination thus admitted the extent of the tenancy to also include the bathroom and such an admission by PW1 was the best form of evidence. Ld. Counsel for defendant further contended that since the tenancy comprised two baithaks and bathroom, the legal notice sent to Late Ram Dayal was defective and could not have validly terminated the tenancy of Sh. Ram Dayal. In support of this argument of his, Ld. Counsel for defendant relied on Girdhari Lal Mundra Vs. Kumar Parnendu Narayan Roy, Deb Baram AIR 1939 Calcutta 291, Sokhatam Pant Laxman Rao Vs. K.L. Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 12/34 Lodhi & Anr. AIR 1953 Nag. 265 and Bodardoja Vs. Ajijuddin AIR 1929 Calcutta 651. The rebuttal argument of counsel for plaintiff was that the portion shown in red in the site plan Ex. PW1/1 not only included the two Baithaks and bathroom but also the common courtyard. He also argued that while the defendant was specifically shown the site plan Ex. PW1/1 in his cross examination which finds mention in the cross examination of DW1 (dated 28.03.2013), the erstwhile plaintiff PW1 was not shown the site plan. There is no merit in the last contention of the plaintiff's counsel that PW1 was not shown the site plan, simply because it is not specifically noted that the witness had been shown the site plan it does not imply that the witness was not shown the same especially when the witness has answered the question without any objection being raised at that stage by either the witness or the counsel in that regard. However, there is force in the other contention of counsel for plaintiff that the site plan Ex. PW1/1 shows even the common courtyard in red colour but it is nobody's case that the common courtyard was ever under the tenancy of Late Ram Dayal. When even the defendant does not plead the courtyard to be part of the tenancy of Late Ram Dayal then any purported admission of PW1 which is sought to be construed to that effect would have to be looked at in the totality of the facts and circumstances of the case and the evidence of both the parties. The Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 13/34 plaintiff has stated in the plaint that after the other tenants vacated their respective portions the latrine, bathroom and courtyard were used by the family members of Sh. Ram Dayal and the defendant and his family members and the entire premises for which the suit had been filed was shown in red in the site plan Ex. PW1/1. The defendant/DW1 in his cross examination deposed as follows "Apart from two Baithaks which were in the tenancy of thy father, the other portions shown in red colour in the site plan were in the use of my father."
18. Thus, as per defendant himself, while the two baithaks were in the tenancy of his father, the other portions shown in red in the site plan were merely in the 'use' of his father; the witness did not depose that the said portions were under the tenancy of his father nor did he prove that the bathroom ever formed part of the teanncy.
19. In addition, DW1 admitted in cross examination that there were other tenants apart from his father in the suit property though he volunteered that it was a godown and nobody resided there. DW1 deposed that he did not know if in a portion of the property, Sh. Ram Ji Lal, Sh. Banwari Lal, and Sh. Beni Prasad were residing along with their respective families however he testified that in his presence no other person was occupying or using the Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 14/34 property in dispute. The defendant/DW1 admitted in his cross examination that he did not have any document at present to show that the bathroom in the property in question was in the tenancy of his father. The plaintiffs proved the counterfoils of the rent receipts Ex. PW1/17 colly through the evidence of PW1 who deposed that the same were issued by him and were in his handwriting and bore the signatures of Late Ram Dayal at point 'X'. A suggestion was put to PW1 that the had forged and fabricated the documents Ex. PW1/17 colly after the defence evidence of the defendant was concluded in order to help the present plaintiffs however the fact of the matter is that these documents were in fact put to the defendant's witness Dw1 during his cross examination and the relevant portion of his cross examination in this regard is reproduced hereunder "My father used to sign counterfoil of the rent receipts. I can identify the signature of my father. I have no idea about the signatures appearing on receipts marked as Mark A to K because I have never seen the signatures of my father in 'Mundi' script appearing at point 'X' on all rent receipts. I have never seen my father signing counterfoils."
20. It comes out through the aforesaid testimony of DW1 that Late Ram Dayal used to sign the counterfoils of the rent receipts but DW1 chose neither to admit nor deny the signatures at point 'X' on the rent receipts put to Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 15/34 him by the plaintiff's counsel as being of Late Ram Dayal's simply stating that he had never seen his father sign in 'Mundi' script. DW1 did not state that the said receipts were fabricated, nor did he adduce any oral or documentary evidence to the effect that the signatures on the counterfoils of the rent receipts were not of his father inspite of the fact that he had been cross examined on this aspect and he had neither affirmed nor denied the signatures thereon. It was because there was no specific admission or denial of the said counterfoils that the application of the plaintiffs U/o 18 R 17 CPC was allowed and PW1 was called in evidence to prove the said counterfoils who proved them as Ex. PW1/17 colly and even in cross examination he stood firm to the stand that Ex. PW1/17 colly were signed by Late Ram Dayal. PW1 deposed that at the time of filing the suit he was not able to trace out the aforesaid counterfoils of the rent receipts and volunteered that he handed over all the counterfoils that he could find to the present plaintiffs. The said counterfoils came on record during the cross examination of DW1 itself and the defendant who himself gave an evasive response in respect of the signatures on the same, did not even seek to adduce any further evidence to prove that the signatures thereon purported to be of Late Ram Dayal were fabricated, which is fatal to the defendant's case. The rent receipts Ex. PW1/17 colly show clearly the rent being for two Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 16/34 Baithaks mentioned to be for the purpose of residence and there is no mention of bathroom in any of the counterfoils of the rent receipts.
21. It is also noteworthy that the defendant who admitted that his father used to sign counterfoils of rent receipts has not chosen to adduce in evidence the rent receipts issued to his father or any other document for that matter, which could shown that the bathroom was also in the tenancy of Late Ram Dayal. It was rightly pointed out by counsel for plaintiffs that even in the legal notice Ex. PW1/5 issued to Late Bharpai Devi, mother of the defendant, it had been stated that she was a statutory tenant in respect of two Baithaks at the ground floor of property no. 57700, Jogiwara, Nai Sarak, Delhi and in response to the same, i.e. the reply Ex. PW1/8A, though it was denied that she was a statutory tenant in respect of the two Baithaks at the premises in question, but it was nowhere specifically stated that Smt. Bharpai Devi was a tenant (contractual or statutory) in respect of the bathroom also. It was basically stated in the said reply that Smt. Bharpai Devi was a contractual tenant and became a tenant after the demise of Late Ram Dayal. DW1 in his cross examination admitted Ex. PW1/8A as being the reply sent to the legal notice and importantly, he deposed that the reply Ex. PW1/8A was given under the instructions of his mother and himself.
22. DW1 admitted that in the notice Ex. PW1/5 it was mentioned that Late Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 17/34 Ram Dayal was a tenant in respect of only two Baithaks and deposed that he had told his counsel about the tenanted premises at the time of getting the reply issued, he testified further that he had told his counsel that besides two baithaks, the bathroom, store, chowk and courtyard were also with them. The defendant in his cross examination thus deposed beyond his own pleadings that the tenancy comprised two baithaks and one bathroom and though admittedly the legal notice Ex. PW1/5 mentioned only about two Baithaks as being the tenanted premises, the reply Ex. PW1/8A admittedly issued at the instructions of the defendant and Late Bharpai Devi does not raise this specific objection regarding the bathroom also being part of the tenancy which has been raised for the first time in the written statement apparently as an afterthought.
23. The defendant has thus failed to prove that the bathroom was part of the tenancy and the plaintiff's case that it was only the two baithaks which were under the tenancy of Late Ram Dayal while the rest of the portion shown in red in Ex. PW1/1 was merely being used by Late Ram Dayal and thereafter the defendant but was not under the tenancy of Ram Dayal stands proved on a preponderance of probabilities. The reliance on the judgment of Girdhari Lal Mundra (Supra) was placed by the defendant for the observation therein that if a portion of the tenancy is omitted in the notice then it would not Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 18/34 be a valid notice U/s 106 Transfer of Property Act. This judgment is inapplicable in the facts of the present case. Similarly, the reliance on the judgment AIR 1953 Nag 265, wherein the judgment of AIR 1918 PC 102 was quoted to the effect that a notice U/s 106 T.P. Act must relate to the entire premises leased and not only to portion thereof, is misplaced since the notice Ex. PW1/2 in fact pertained to the entire suit premises. On the same ground, the reliance on the judgment of AIR 1929 Calcutta 651 is misplaced, which also holds that if it is a fact that a part of the land of tenancy was excluded from the notice to quit and from the suit in ejectment and of such part the defendants were in possession as tenants under the plaintiff, the plaintiff could not possibly obtain a decree. The defendant in the present case has not proved that Late Ram Dayal was a tenant in respect of the bathroom also and the plaintiff has been able to establish that the tenanted premises were only the two baithaks while the rest of the portions were only being used commonly by Late Ram Dayal and his family members.
24. Thus, the legal notice Ex. PW1/2 was a valid notice and presumption is drawn U/s 27 General Clauses, Act that the same was duly served upon Late Ram Dayal which presumption could not be rebutted by the defendant. Hence, the tenancy of Late Ram Dayal was validly terminated.
Issue decided in favour of the plaintiffs.
Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 19/34 Issue No. 2 Whether the jurisdiction of civil court is barred by U/s 50 of Delhi Rent Control Act? OPP
25. It was argued by Ld. Counsel for the defendant that Section 2 (l) of the Delhi Rent Control Act would be attracted only in the case of residential premises for which there should be a specific pleading in the plaint. He argued that the plaintiff had nowhere mentioned that the suit premises was let out for residential purpose. He referred to the reply to the legal notice of Late Bharpai Devi Ex. PW1/8A wherein she had denied that she was a statutory tenant or that the purpose of letting was only residential.
26. The counsel for plaintiff rebutted this contention by claiming that in para four of the plaint, the plaintiff had mentioned that U/s 2 (l) of the Delhi Rent Control Act, only the widow of Late Ram Dayal who was residing with the deceased and was financially dependent on him inherited the tenancy rights, he also referred to the counterfoils of the rent receipts Ex. PW1/17 (colly) which mentioned that the two baithaks were for purpose of 'riyaish' or residence.
27. On a meaningful reading of the plaint, particularly para four thereof it is amply clear that the plaintiff's case is that the tenancy was a residential one and it was the defendant's duty to raise the objection in the written statement that the tenancy was commercial and also prove the same, if that were the Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 20/34 case, through evidence. In fact, the defendant has not even raised any such plea in the written statement and specifically in response to para four of the plaint, the defendant has only claimed that the tenancy of Sh. Ram Dayal was contractual and after his demise it devolved upon all the heirs of Sh. Ram Dayal. PW1 was not even put a suggestion that the tenancy was a commercial one. In his cross examination DW1 in fact deposed that he had been residing in the suit property since birth and in his affidavit he deposed that the remaining portion of the ground floor was let out for godown purpose and there was no residence on the ground floor except the residence of his father. There is no whisper in the entire affidavit of evidence of the defendant that the tenancy was not just residential but also commercial. The defendant thus has neither pleaded nor proved that the tenancy was a commercial tenancy therefore this argument of the defendant regarding the nature of the tenancy is rejected. As held by me in issue no. 1 above, the plaintiffs have proved the service of valid notice U/s 106 T.P. Act i.e. Ex. PW1/2 on Late Ram Dayal and after expiration of the notice period the said Late Ram Dayal became a statutory tenant qua the tenanted premises.
Section 2(l) of the Delhi Rent Control Act, 1958 is attracted to the facts of the present case which provides as under
2. Definitions: In this Act, unless the context otherwise requires Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 21/34 ..............
(l) "tenant" means any person by whom or on whose account or behalf of the rent of any premises is, or, but for a special contract, would be, payable, and includes
(i) as subtenant;
(ii) any person continuing in possession after the termination of his tenancy; and
(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 I 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) daughterinlaw, being the widow of his predeceased 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 re Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 22/34 opened under the proviso to section 3 of the Delhi Rent Control (Amendment) Act, 1976;
(B) any person to whom a licence, as defined by section 52 of the Indian Easements Act, 1882, has been granted.
Explanation I: 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) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if ther 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 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 daughterinlaw, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son or daughter or parents, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.
............
Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 23/34
28. Thus upon the death of Late Ram Dayal, his widow Smt. Bharpai Devi succeeded to the tenancy to the exclusion of the other LRs of Late Ram Dayal and since the right of the Smt. Bharpai Devi to succeed to the tenancy was personal to her, it did not devolve upon her heirs. The notice issued to Smt. Bharpai Devi dated 05.03.2005 alongwith the postal receipts and AD Card were proved by PW1 as Ex. PW1/5 to Ex. PW1/8. Admittedly, Ex. PW1/8A dated 24.03.2008 is the reply sent to the said notice. Now, PW1 also proved the letter dated 16.04.2008 Ex. PW1/9 issued by him to Smt. Bharpai Devi acknowledging the receipt of her reply (Ex. PW1/8A) and pay order for Rs. 573/ which, he informed in the letter, that he would get encashed without prejudice to his rights. Ex. PW1/10 is the postal receipt, Ex. PW1/11 is the AD Card, Ex. PW1/12 is the U.P.C. in proof of delivery of the letter Ex.PW1/9. PW1 denied that Ex. PW1/10 to Ex. PW1/12 were manipulated documents. The defendant in the written statement has denied that this letter was sent to Smt. Bharpai Devi but interestingly, DW1 perhaps unwittingly aided the plaintiffs' case when in his cross examination dated 25.07.2013 he voluntarily deposed that the rent used to be sent by money order and used to be received by Sh. Shiv Shanker Rustagi (erstwhile plaintiff) under protest. DW1 also admitted that the money orders were alway sent in the name of his mother Smt. Bharpai Devi and that defendant's brothers i.e. Sh. Vijay Kumar, Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 24/34 Uma Shankar and the defendant himself tried to tender the rent to the erstwhile plaintiff Sh. Shiv Shanker Rustagi but he refused to accept the rent tendered by them therefore they used to send the rent by way of money order in the name of Smt.Bharpai Devi. DW1 also brought the originals of receipts of three money orders sent by him to Sh. Shiv Shanker Rustagi, the photocopies of which were exhibited as Ex. DW1/PA colly and deposed that these were not accepted by Sh. Shiv Shanker Rustagi. Though DW1 denied the suggestion that the tenancy only devolved upon his mother or that for this reason only the rent was sent in the name of his mother however the testimony of the defendant itself shows that PW1 used to accept the rent tendered by or on behalf of Smt. Bharpai Devi only that too under protest, the tenancy of Late Ram Dayal as per Section 2 (l) DRC Act, only devolved upon Smt. Bharpai Devi, who admittedly died, thereafter the occupation in the said premises by the defendant was as an unauthorized occupant.
29. The defendant also admitted receiving the notice dated 10.05.2011 Ex. PW1/13 to which the defendant apparently sent no reply as is claimed by him. Late Ram Dayal having died as a statutory tenant, the tenancy which was residential only devolved upon Smt. Bharpai Devi to the exclusion of all other LRs of Late Ram Dayal and upon the death of Smt. Bharpai Devi, the defendant and other LRs of the Late Ram Dayal and Smt. Bharpai Devi did Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 25/34 not inherit the tenancy. Since the defendant is merely an unauthorized occupant in the suit property, the bar of Section 50 DRC which bars the jurisdiction of the civil court in case of tenancies covered under the Act, does not apply.
This issue is thus decided in favour of the plaintiff and against the defendant.
Issue No. 3 Whether the plaintiff is entitled for a decree of possession as prayed for? OPP
30. The plaintiffs have proved the termination of the tenancy of Late Ram Dayal vide the legal notice Ex. PW1/2. The defendant has neither pleaded nor proved that the tenancy was a commercial one. The tenancy thus devolved only upon Smt. Bharpai Devi as per Section 2(l) of the DRC Act and the rent tendered by her vide the reply to the legal notice Ex. PW1/8A was accepted by the erstwhile plaintiff PW1 without prejudice to his rights as spelt out by him in his letter Ex. PW1/9. Admittedly, Smt. Bharpai Devi died. Upon the death of Smt. Bharpai Devi , the erstwhile plaintiff PW1 admittedly sent legal notice Ex. PW1/13 to the defendant. In the legal notice Ex. PW1/13 the plaintiff stated that the defendant was an illegal occupant in the premises in question and defendant was called upon to vacate the same. The defendant in cross examination while admitting that his wife received the Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 26/34 notice and handed over the same to him and that he read the contents thereof evasively responded that he did not remember whether he had replied to the notice and could not even admit or deny the suggestion that he did not send any reply to the notice. No such reply was placed on record by the defendant and adverse inference must be drawn against the defendant that in fact no reply was even sent by him to the legal notice of the plaintiff. The defendant did not vacate the suit property even after receiving the legal notice from PW1. The fact that PW1 was the landlord of the suit property was not denied by the defendant. One defence taken by the defendant was that the suit was bad for nonjoinder of necessary parties i.e. the other LRs of Smt. Bharpai Devi. In fact, Smt. Bharpai Devi was not a contractual tenant and the statutory tenancy of Late Ram Dayal only devolved upon her as provided U/s 2 (l) of the DRC Act. The plaintiff argued that it was only the defendant and his family members who were in possession of the suit property. The onus was on the defendant to prove that other LRs of Late Bharpai Devi were also residing in the suit premises but he failed to adduce any evidence whether independent oral testimony or documentary evidence in this regard; in his cross examination, DW1 deposed that his brothers were residing in the suit property along with their wives but he did not know if his brothers had any ration card, gas connection or election I card showing the address of the suit Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 27/34 premises. He deposed immediately thereafter that a gas connection in his father's name was still continuing in the suit property but that is of no consequence since DW1 was asked specifically about documentary proof to show that his other brothers were also residing in the suit property. He evasively deposed that he did not know whether the address of the suit property had been provided by his brothers in the school records of their children and he also deposed that he did not know if his brothers owned or possessed any other premises or property for residence. The defendant's evasive testimony must be read against him especially since he has neither produced any of his brothers in evidence to prove that they were also residing in the suit property nor has he adduced any documentary evidence in this regard; not even when the counsel for plaintiff coaxed him in cross examination regarding documents showing the alleged possession of the brothers of the defendant of the suit property. The defendant has thus miserably failed to establish that the suit is bad for non joinder of necessary parties.
31. The plaintiffs (i.e. the subsequent purchasers who purchased the suit property from the erstwhile plaintiff PW1 vide the sale deed Ex. P1 and Ex. P2 respectively), have established their entitlement to the relief of recovery of possession of the suit property as shown in red in the site plan Ex. PW1/1 Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 28/34 from the defendant who is an unauthorized occupant in the same.
Issue decided in favour of the plaintiffs.
Issue No. 4. Whether the plaintiff is entitled for decree of damages/mesne profit as prayed, if yes, at what rate and for what period? OPP
32. The present plaintiffs on 20.09.2012 through their counsel Sh. G.D. Gupta, submitted during the course of arguments on their application U/o 22 R 10 CPC, that they were foregoing the damages and rent for the period prior to the execution of the sale deed. The sale deeds Ex. P1 and Ex. P2 are both dated 12.07.2012. Thus, the relief of damages of Rs. 2,000/ as sought up to June, 2011 in prayer clause (b) of the plaint does not survive. The plaintiff has not sought the relief of pendente lite mesne profits.
33. As regards the future mesne profits sought, the plaintiff's claim the same at Rs. 500/ per month or such higher rate as may be prevailing fro time to time. The rate of rent that was admittedly being paid by Late Ram Dayal and Late Smt. Bharpai Devi was Rs. 16.35 per month. The plaintiff in his affidavit of evidence Ex. PW1/A deposed that the letting value of the suit property at the time of filing of the present suit must be about Rs. 500/ per month. In cross examination, PW1 deposed that he had not seen any rent agreement of the neighbouring properties but denied the suggestion that the premises in dispute could not fetch Rs. 500/ per month as claimed by him. Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 29/34 The defendant in his affidavit of evidence Ex. DW1/A on the other hand did not even so much as depose that the letting value of the premises in dispute at the time of filing of the suit was not Rs. 500/ per month. In fact in cross examination, he merely deposed that he could not say what was the letting value of the suit property at the time of filing of the present suit. In effect, the testimony of PW1 regarding the letting value of the suit property being about Rs. 500/ per month has gone virtually unrebutted and appears reasonable and in absence of any evidence to the contrary having been led by the defendant can be safely considered to be the letting value thereof at the time of filing of the suit and the plaintiffs accordingly are entitled only to future damages @ Rs. 500/ per month from the date of decree till the date of handing over of vacant possession of the suit property by the defendant. The plaintiffs have not led any evidence to prove their entitlement to any interest on the damages awarded therefore they are not entitled to any interest on the future damages awarded.
Issue is accordingly partly decided in favour of the plaintiffs. Issue No. 5. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
34. The erstwhile plaintiff PW1 deposed that on 17.07.2011, he noticed the defendant trying to part with the possession of the suit premises to some Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 30/34 other person and when he asked the defendants as to why he was showing the property to unknown persons he openly threatened that he was going to part with the possession of the suit premises. The plaintiff has thus disclosed a specific cause of action for seeking the relief of permanent injunction against the defendant. The defendant has not specifically denied the incident of 17.07.2011 in his affidavit of evidence Ex. DW1/A and though in his cross examination he denied that after receiving notice Ex. PW1/13 he tried to part with possession or that on 17.07.2011 he was showing the property to unknown persons yet the fact remains that PW1 who deposed about the purported incident of 17.07.2011 on oath has not even been cross examined on this aspect nor has even a suggestion been put to him that no such incident took place, thus PW1's aforesaid allegation has not been sought to be specifically controverted by the defendant. In any case, the defendant who is only an unauthorized occupant in the suit property has no right to hand over possession of the suit premises to any third person.
35. It was argued by Ld. Counsel for defendant that the relief of permanent injunction as was being sought in the present suit was barred U/o 2 R 4 CPC.
Order 2 R 4 CPC provides as follows
1. Only certain claims to be joined for recovery of immovable property. No cause of action shall, unless with the leave of the Court, be Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 31/34 joined with a suit for the recovery of immovable property, except "(a) claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the relief sought is based on the same cause of action; Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property."
On the other hand, Order 2 R 2 (1) CPC provides thus "(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
36. The object of Order 2 R 2 CPC is to prevent multiplicity of litigation and the relief of permanent injunction as sought by the plaintiff does in fact originate from the same cause of action as the relief of possession in as much as the plaintiff alleges that after the receipt of the notice Ex. PW1/13 asking the defendant, an unauthorized occupant to vacate the suit premises, the defendant tried to part with the possession of the suit premises. The Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 32/34 argument of counsel for defendant regarding bar of Order 2 Rule 4 CPC thus is without merit.
37. Thus the plaintiffs have sufficiently established their right to the suit property and the threat of alienation by the defendant and are thus entitled to the relief of permanent injunction as sought.
Issue decided in favour of the plaintiffs.
Issue No. 6 Relief
38. In view of the aforesaid discussion, the suit of the plaintiffs stands partly decreed. The plaintiffs are held entitled to the relief of possession of the ground floor of property no. 5770, Jogiwara, Nai Sarak, Delhi - 6 as shown in red in the site plan Ex. PW1/1. The defendant is directed to hand over the vacant possession of the suit property within sixty days from today. The relief of damages of Rs. 2,000/ as sought up to June 2011 is dismissed as withdrawn/ given up by the plaintiffs. The plaintiffs are held entitled to the relief of future damages from the date of decree till the date of handing over of vacant possession of the suit property by the defendant @ Rs. 500/ per month without any interest thereon. The plaintiffs are also held entitled to the relief of permanent injunction restraining the defendant, his family members etc. from subletting, assigning or in any manner parting with possession of the ground floor of premises no. 5770, Jogiwara, Nai Sarak, Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 33/34 Delhi as shown in red colour in the site plan Ex. PW1/1 to any person except the plaintiffs. Site plan Ex. PW1/1 to form part of decree. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 16.05.2014 Civil Judge - 10 (Central)
16.05.2014
Suit No. 94/11 Smt. Meena Bhatia & Ors. Vs. Sh. Rakesh Kumar Sharma 34/34