Delhi District Court
Suit No. : 324/ vs Smt. Neeru Singhla on 10 December, 2013
IN THE COURT OF SH. SUMIT DASS, ADMINISTRATIVE
CIVIL JUDGE (NORTH WEST), ROHINI COURTS, DELHI
Suit No. : 324/10.
Sh. Sanjay
S/o Sh. Dharam Singh
R/o H. No. 203, Pocket8
Sector20, Rohini, Delhi
Also at:
B225, Baljeet Vihar
Delhi ...Plaintiff.
Versus
1. Smt. Neeru Singhla
W/o Late Sh. Surender Kumar Singhla
R/o D14/33, Sector8
Rohini, Delhi
2. The SHO
PS Begumpur
Delhi ...Defendants.
Date of Institution : 01.07.2010.
Date of Arguments : 10.12.2013.
Date of Judgment : 10.12.2013.
Suit No. 324/10. 1 of 18
Sanjay v. Neeru Singhla.
SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT DT
12.03.2010, PERMANENT AS WELL AS MANDATORY
INJUNCTION.
JUDGMENT:
1. In short facts are as under:
Plaintiff claims that he was inducted as a tenant in the property no. 203, Pocket8, Sector20, Rohini, Delhi by the defendant no 1 at a monthly rent of Rs 4,000/ and at that point of time Rs 10,000/ was given by him as a refundable security deposit to the defendant no. 1. The terms of the tenancy were reduced in writing and a rent agreement dated 12.03.2010 notarized by the notary public was executed in this regard.
Possession of the property was handed over to the plaintiff on 15.03.2010 and plaintiff along with his family was living therein. On account of some unavoidable circumstances, rent for the month of May, 2010 could not be paid by the plaintiff and taking exception of the same, defendant no. 1 had put her own locks upon the main gate by removing the locks of the plaintiff. On 04.06.2010 when the plaintiff had come to the property and Suit No. 324/10. 2 of 18 Sanjay v. Neeru Singhla.
inquired from the neighbours he was informed that the defendant no. 1 had removed his locks and put her own locks. A police complaint was also made in this regard but of no effect. The defendant no 1 along with defendant no. 2 SHO PS Begum Pur, in a manner, had dispossessed the plaintiff. Again on 09.06.2010, when plaintiff went to the property his belongings were removed by the defendant no. 1 from the suit property.
Thus, in such circumstance, it is stated that since the legal tenancy of the plaintiff subsisted by way of rent agreement dated 12.03.2010 i.e. w.e.f. 15.03.2010 to 14.02.2011 and plaintiff was wrongly dispossessed. Defendant no. 1 be directed to perform his part of obligation and allow the plaintiff to resume possession. Furthermore, a decree of permanent injunction was sought for restraining the defendant no. 1 from creating any third party interest in the suit property coupled with mandatory injunction to return the articles belonging to the plaintiff. Hence, the present suit.
2. In the written statement filed by the defendant no. 1 apart from taking the preliminary objections that suit was not properly valued Suit No. 324/10. 3 of 18 Sanjay v. Neeru Singhla.
for the purposes of court fees and jurisdiction defendant no. 1 had stated that the plaintiff had voluntarily vacated the property on 13.05.2010 and had executed documents in this regard in presence of Sh. N K Bansal. Present suit was filed for extracting money. Infact, the site plan filed by the plaintiff was not correct as the correct property was not correctly depicted. The rent agreement relied by the plaintiff was also not admissible as the same was neither properly stamped nor registered as per law. Plaintiff after coming into possession was using the premises for unlawful activities and a report to the police dated 05.04.2010 was also lodged in this regard. The incident of 04.06.2010 and 09.06.2010 were stated to be incorrect and concocted by the plaintiff. Dismissal of the suit was sought for.
3. Issues were settled in the matter on 27.07.2010 as under:
(i) Whether the plaintiff is entitled for a decree of specific performance, as prayed? (OPP)
(ii) Whether the plaintiff is entitled for a decree of permanent Suit No. 324/10. 4 of 18 Sanjay v. Neeru Singhla.
injunction, as prayed? (OPP)
(iii) Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed? (OPP)
(iv) Whether the documents executed dated 13.05.2010 has been executed by the plaintiff as alleged? (OPD)
(v) Whether the suit is not maintainable in view of other preliminary objections? (OPD)
(vi) Relief.
Now, it is relevant to note that vide order dated 27.07.2010 the plaintiff had not pressed for his application u/o XXXIX rule 1 & 2 CPC.
Subsequent thereto, the suit was dismissed in default and thereafter restored to its original number and position on 02.05.2011.
It is relevant to note that no serious allegations were casted against defendant no. 2 the plaintiff appears to have waived his claim against the defendant no. 2 and confined the suit against defendant no. 1 Suit No. 324/10. 5 of 18 Sanjay v. Neeru Singhla.
itself.
4. Matter was posted for evidence.
On behalf of plaintiff, plaintiff Sanjay was the sole witness who tendered his evidence by way of affidavit Ex. PW1/1. He has proved/relied upon the documents i.e. site plan Ex. PW1/A, copy of complaint dt 08.06.2010 Ex. PW1/B, complaint dt 09.06.2010 along with list of articles Ex. PW1/C, copy of rent agreement dt 12.03.2010 Ex. PW1/D. He was cross examined by the ld. counsel for the defendant. Thereafter, PE was closed.
On behalf of the defendant apart from defendant father of the defendant Sh. N K Bansal @ Naresh Kumar Bansal was also examined. Defendant had examined herself as DW1 and tendered her affidavit in evidence Ex. DW1/A and relied upon document i.e. executed by the plaintiff after vacating the property Ex. PW1/DX, copy of complaint dt 05.04.2010 Ex. DW1/1.
Sh N K Bansal @ Naresh Kumar Bansal was a witness to the alleged document Ex PW1/DX. Both the defendant witnesses were cross Suit No. 324/10. 6 of 18 Sanjay v. Neeru Singhla.
examined and thereafter DE was closed.
5 Heard either side.
6 In pith and substance it is a suit seeking recovery of possession back/ resumption of possession in as much as plaintiff/ tenant has been allegedly dispossessed without due process of law during subsistence of the currency of the tenancy agreement. Plaintiff could have also filed a suit u/s 6 of the Specific Relief Act based upon his prior possession without seeking any declaration of his rights but he has filed a suit seeking directions against the defendant no. 1 that she should obey the terms and conditions of the rent agreement whereby he was inducted as a tenant and restore his possession over the property. To my mind, the issues which have been framed are more or less generic issues which in a manner tend to put the entitlement aspect/ relief as a subject matter of a distinct issue. It is therefore better that prior to discussion on issues the points in controversy/ which needs to be adjudicated can be culled out and discussion is made directly on such points, same to my mind are as under:
Suit No. 324/10. 7 of 18 Sanjay v. Neeru Singhla.
(i) Whether the plaintiff was inducted as a tenant vide a rent agreement dated 12.03.2010 as alleged, if yes, its effects?
(ii) Whether the said agreement dated 12.03.2010 can be looked into during evidence as a duly proved/ admissible document?
(iii) Whether the plaintiff has been dispossessed during subsistence of the tenancy agreement?
(iv) Whether the plaintiff has left the premises as stated by the defendant no. 1 voluntarily on 13.05.2010?
(v) If all the above four points are decided in favour of the plaintiff to what relief the plaintiff is entitled to?
Be that as it may be issues have been framed and each party has understood the case of either side. Hence, all the issues are being decided together alongwith the observations made specifically on points
(i) to (v) which are being specifically dealt with.
Point no. (i): Now, the plaintiff has asserted that an agreement was executed inter se. He has also filed a copy of the same which was proved as Mark A. It is also pertinent to note that no specific objection was taken at the point of tendering of the evidence particularly Suit No. 324/10. 8 of 18 Sanjay v. Neeru Singhla.
in reference to this aspect that document was insufficiently stamped. Plaintiff has also alleged that original of the document was with the defendant and only a xerox copy was given to him. Now, in the W.S defendant has denied the existence of such agreement and in continuation thereof a suggestion was put to the plaintiff that defendant no. 1 had not executed any agreement of the property. However, when DW1 had deposed she had admitted that the copy of the agreement was correct and it bears her signatures at pt A. That being the situation, in my opinion, the genuineness or the existence of the agreement is probablized. The stand of the defendant is further corroded for the reasons that in the w.s. she had denied the execution of the agreement and later on, did a somersault and admitted the same in her cross examination. It is also to be seen that in reference to rent agreement an objection was made but not with regard to execution of the agreement but only with regard to its inadmissibilty thereof as being insufficiently stamped. Parties have also admitted the agreement and the factum of security of Rs 10,000/ by the defendant no
1. Thus, the existence of the rent agreement dated 12.03.2010 stands proved and is made out as the same has been duly proved during evidence Suit No. 324/10. 9 of 18 Sanjay v. Neeru Singhla.
by either side.
Now, coming to the (ii) point i.e. as to whether said agreement can be looked into during evidence as a duly proved/ admissible document. The admissibility of the agreement is sought to be impeached on the point of registration as well insufficient stamping. Now, the agreement was for 11 months and an agreement of 11 months does not require any compulsory registration. Even at the time of tendering of the evidence no specific objection to the aspect was taken. As mentioned, the existence of the agreement has been proved on record. The original whereof is with the defendant no. 1. She has not produced the same for obvious reason that had the same been produced on record defendant no. 1 would have been liable for penalty by impounding of the agreement and imposition of 10 times penalty and thus, for the said reason she has evaded the production. On one hand, she is not producing the document on the other hand she is taking an objection on the aspect of insufficient stamping which to my mind is not permissible and an adverse inference is to be taken against the defendant no. 1.
There is also another way of looking into the controversy. Suit No. 324/10. 10 of 18 Sanjay v. Neeru Singhla.
The objective of/ the embargo of taking into cognizance a document which is insufficiently stamped is to ensure that the interest of the revenue is not jeopardized and at the same time, such objections must be taken at the time of tendering of evidence and there must an adjudication on the said aspect either voluntarily by the parties to the suit or the agreement should be sent to the Collector of Stamps for imposing panelty on the same. Thus, the need for raising a specific objection at the time of tendering of evidence and not thereafter. In this regard, reliance can be placed upon a judgment of Suresh Kumar v. Satish Mehra & Anr a judgment delivered by Hon'ble Delhi High court in O. M.P. 245/03 disposed off on 06.08.2012.
In the said case, the Hon'ble High Court had relied upon the judgment of Javer Chand v. Pukhraj Surana cited in AIR 1961 SC 1655 and had observed the effect of section 36 of the Indian Stamp Act precludes any inquiry with regard to the document which has been admitted in evidence. It was observed as under:
"Where a question as to the admissibility of a document is raised on the ground that it has Suit No. 324/10. 11 of 18 Sanjay v. Neeru Singhla.
not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has farreaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case".
Needless to state that in the case in hand documents have already been tendered in evidence and no specific objection was raised at that point of time by the defendant no. 1 where by the document could have been sent to the Collector of Stamps. That being the situation, there is no infirmity with regard to the aspect of insufficiency of stamp duty in the document and further also on account of non filing of the original and hence, any scrutiny at this stage is prohibited. That being the situation, Suit No. 324/10. 12 of 18 Sanjay v. Neeru Singhla.
this aspect does not detain me any further.
Now, the points no. (iii) & (iv) can be definitely taken up together i.e. as to whether the plaintiff has been dispossessed during subsistence of the tenancy or as to whether the plaintiff has left the premises as stated by the defendant no. 1 voluntarily on 13.05.2010 by executing a document Ex. PW1/DX. PW1 submits that copy of his PAN card was taken by the defendant no. 1 at the time of execution of rent agreement. PW1/DX is the copy of his PAN card. It is admitted by the defendant that the writing on Ex. PW1/DX is of the father of defendant no. 1 i.e. Sh. N K Bansal. Thus, to my mind, the genuineness of the said document is in deep shadow of doubt. Now, the tenancy commenced on 15.03.2010. First complaint was made to the police on 05.04.2010 and even at that point of time, one month rent was given and a security deposit was also given by the plaintiff amounting to Rs 10,000/ duly acknowledged. The possession of the premises was allegedly handed over on 13.05.2010 by the plaintiff as claimed by defendant no. 1 and viewing from the said perspective, atleast some amount of money had to be returned by the defendant no. 1 and if this would have been the case, it Suit No. 324/10. 13 of 18 Sanjay v. Neeru Singhla.
would have been definitely mentioned on the agreement that plaintiff has taken back the said sum and all accounts have been settled. Defendant no. 1 had also not given any rent receipt to the plaintiff. The writing on Ex. PW1/DX is also not of the plaintiff or any other third person/ independent person. The only a logical conclusion which can be there is that the copy of PAN card already available with the defendant no. 1 has been misused and she has prepared a receipt over the same. It is also to be noted that copy of PAN card was with the defendant no. 1 in as much as she had noted the PAN number while addressing the complaint to the police. Thus, the case of the defendant is not made out and the plea of the plaintiff that the possession was taken by the defendant no. 1 forcibly with the assistance of police is probablized. Plaintiff had also lodged complaints in this regard. The factum that the defendant no. 1 had lodged a complaint to the police immediately after 1520 days of the commencement of tenancy also points out to the fact that the relationship between them was not cordial whereby there could have been voluntarily surrender of tenancy. Thus, on the pleadings and evidence, the case of defendant no. 1 is not made out. The legal possession has to be with the Suit No. 324/10. 14 of 18 Sanjay v. Neeru Singhla.
plaintiff and automatically he is entitled for resumption of the same in as much as he has been dispossessed without due process of law.
Now, coming to the aspect of specific relief.
For the reasons best known to the plaintiff, at the time of settlement of issues he has not pressed his application u/o XXXIX rule 1 & 2 CPC and later on the suit was dismissed in default. The fact that the property was sold by defendant no. 1 is also not in dispute. In such circumstance when the property has been sold by the defendant no. 1 without there being any restrainment order no decree of specific performance can be passed whereby defendant no 1 can be directed to put the plaintiff back in possession. Thus, the relief has to be moulded in accordance with the fact and circumstances of the case. To my mind, u/o VII rule 7 CPC this court has the power to mould the relief and grant damages. Recourse to section 151 CPC can also be taken in this regard. The agreement was till 14.02.2011. The plaintiff has himself based his case on the agreement and definitely the plaint averments signifies that postcompletion of the agreement he would have vacated the premises. The agreement mandates that the plaintiff was to be in possession subject Suit No. 324/10. 15 of 18 Sanjay v. Neeru Singhla.
to payment of Rs 4,000/ per month as rent. Thus, in my opinion, ends of justice would be met if defendant no. 1 is directed to pay damages at the rate of Rs 4,000/ per month from 13.05.2010 till 14.02.2011 on account of an early forcible dispossession of the plaintiff from the suit property. There can be any other equitable way of computing the damages except the aforesaid in the given facts and circumstancs.
Now, coming to the relief of permanent injunction. The suit property has already been alienated thus, no such relief can be granted.
Coming to the relief of mandatory injunction, there is no evidence that any goods were indeed stolen by the defendant. Nothing precluded the plaintiff to file a criminal compliant in this regard. There is also no evidence adduced by the plaintiff as to whether those goods were actually owned by the plaintiff/ kept in the suit property. Thus, no such relief can be granted. The issues are decided accordingly.
With these observations, suit of the plaintiff is partly decreed. The upshot of above discussion is that the plaintiff is entitled to damages at the rate of Rs 4,000/ per month w.e.f. 13.05.2010 till 14.02.2011 from the defendant no. 1. The relief of permanent and mandatory injunction is Suit No. 324/10. 16 of 18 Sanjay v. Neeru Singhla.
declined.
Decree sheet be prepared accordingly. No order as to costs. File be consigned to Record Room.
Announced in the open court (Sumit Dass)
on 10.12.2013. ACJCUMARC NORTHWEST
(This judgment contains 17 pages ROHINI COURTS, DELHI.
& each page bears my signature.)
Suit No. 324/10. 17 of 18
Sanjay v. Neeru Singhla.
Suit No. 324/10.
10.12.2013.
Present: Plaintiff in person.
Defendant no 1 in person.
Final arguments have been heard.
Vide separate judgment of even date, suit of the plaintiff is partly decreed. No order as to costs. Decree sheet be prepared accordingly. Suit file be consigned to Record Room.
(SUMIT DASS) ACJcumARC (North West) Rohini Courts, Delhi/10.12.2013.
Suit No. 324/10. 18 of 18 Sanjay v. Neeru Singhla.