IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT JUDGE -13 : CENTRAL DISTRICT; TIS HAZARI COURTS : DELHI SUIT NO. 13410/16 In re : 1. [ENTITY] S/o Sh. Dharampur 28, [ENTITY], Jhandewalan Road, Delhi-110028. 2. [ENTITY] S/o Sh. Dharampur 28, [ENTITY], Jhandewalan Road, New Delhi-110028. Plaintiffs Versus 1. [ENTITY] ( A company incorporated under Indian Companies Act, 26, [ENTITY], Jhandewalan Rod, New Delhi-110028. 2. [ENTITY] (Damage Section) A-Block, Ground Floor, Vikas Sadan, New Delhi-110023. Defendants SUIT FOR PARTITION & PERMANENT INJUNCTION Date of institution of present suit : 15.04.2006 Date of receiving in this court : 16.09.2016 Date of reserving order : 11.04.2017 Date of Judgment : 06.05.2017 [PRECEDENT] Page No. 1 of 25 JUDGMENT
1. This judgment shall dispose of suit filed by the plaintiff for recovery of possession, arrears of rent and mesne profits. Initially, suit was filed only against [ENTITY], however, subsequently on the application of the defendant, [ENTITY] (in short [ACT]) was impleaded as defendant no. 2. Plaintiff did not amend the suit and only filed amended memo of parties. Therefore, in the plaint only the word defendant has come and the same has also been used herein which means [ENTITY] and defendant no. 2 has been referred to as [ACT].
2. Plaintiffs have filed the present suit stating that defendant is a tenant at monthly rent of Rs. 5000/- under the plaintiff in respect of first floor, mezzanine floor and terrace in property no. 26 [ENTITY], Jhandewalan, New Delhi-55 as duly shown in the site plan.
3. It has been further pleaded that defendant had not paid the rent from 01.04.1997 therefore, the plaintiffs also claim the arrear of rent w.e.f 01.04.2003 till 31.03.2006 amounting to Rs. 1,80,000/- alongwith interest @ 18 % per annum amounting to Rs. 64,800/-. It has been stated that plaintiffs terminated the tenancy vide notice dated 03.03.2006 which notice was duly served upon defendant and therefore, defendant has been in unauthorized occupation since 01.04.2006. It has been further claimed that defendant is liable to pay mesne profit @ of Rs. 75,000/- per month w.e.f. 01.04.2006. On the above averment plaintiffs have claimed decree of possession, arrear of rent, mesne profit @ 75000/- per month.
[PRECEDENT] Page No. 2 of 25
4. Notice of the suit was served upon the defendant which filed its written statement whereby taking preliminary objection that suit is not maintainable in view of the [SECTION] of [ACT] (in short [ACT]). It has been stated that plaintiffs have been left with no right title or interest in the suit property as the suit property is owned by and vest in [ACT]. It has been further stated that Estate Officer [ACT] has already passed an eviction order against the plaintiffs under the provision of [ACT]. It has been further stated that plaintiffs had earlier filed a suit for possession and mesne profits bearing suit number no. 35/97 avering that plaintiffs had become owner and landlord of building no. 26, [ENTITY] by virtue of Will dated 26.12.1986 executed by Late Sh. [ENTITY] in favour of the plaintiffs, of which Letters of Administration has already been granted in [CASE NUMBER] vide judgment dt 29/08/1993. In the said suit it was also pleaded by plaintiffs that suit premise were let out by Late Sh. [ENTITY] to the defendant by lease agreement dated 04.10.1986. It has been further stated that in the said previous suit it was averred by plaintiffs that portion of the building No. 26 was let out by previous owner late Sh. [ENTITY] to the defendant and Sh. [ENTITY] bequeathed the premise to plaintiffs by virtue of Will dated 26.12.1986. It has been further stated that upon enquiry made by defendant, it was revealed that [ACT] was the principal lessor of the premises and Late Sh. [ENTITY] was the lessee. However, Late Sh. [ENTITY] violated the condition of the lease and in 1982 show cause notice for cancellation were issued to him by [ACT]. Sh. [ENTITY] did not respond and ultimately on 13.10.1982, [ACT] cancelled the lease in favour of [ENTITY] and informed him vide cancellation letter dated 25.10.1982. It has been contended that since lease was cancelled in the year 1982, [ENTITY] [PRECEDENT] Page No. 3 of 25 could not have bequeathed any right, title or interest in favour of plaintiffs by virtue of Will dated 26.12.1986.
5. It has been further pleaded that premises were owned by [ACT] and subject to provisions of [ACT]. defendant filed an application in [CASE NUMBER] seeking impleadment of [ACT] as it was necessary party and [ACT] was impleaded in the said suit. Defendant has filed an application under [SECTION] [ACT]. It has been further stated that after its impleadment [ACT] filed written statement specifically averring that plaintiffs were not the owner of the premises and suit filed by them not maintainable and in view of the stand of [ACT], the plaintiff lost interest in the suit property and stop appearing as a result of which suit was dismissed in default on 16.11.2000. An application seeking restoration was also dismissed on 23.02.2002. It has been contended that upon cancellation of lease in favour of Sh. [ENTITY] the premises had reverted to the [ACT] and become subject to the provision of [ACT] and therefore subject premises become public premises. Hence, no relationship of lessor and lessee exist between the plaintiffs and defendant. On merits it has been denied that plaintiffs are the owner of the property and defendant is tenant under the plaintiffs. It has been stated that since the [ACT] is the owner therefore, there is no question of paying any rent to the plaintiff. On the basis of submission made in the preliminary objection defendant has denied all the allegations of the plaintiffs and has claimed that suit filed by the plaintiffs be dismissed.
6. As noted above, upon the application of the defendant, [ACT] was impleaded as a party but during the entire proceeding [ACT] did not show any serious interest in the matter. Its counsel was very irregular in appearing in [PRECEDENT] Page No. 4 of 25 matter. Although, written statement was filed by the [ACT] but perusal of the ordersheets does not record filing of written statement by [ACT] or denial of right to the [ACT] to file written statement. [ACT] did not lead any evidence nor sought an opportunity for its WS to be taken on record or to be taken cognizance thereof, nor its counsel address any argument in the matter.
7. Plaintiffs filed replication raising preliminary objection that written statement has not been signed and verified in accordance with the law. It has been further stated that eviction order passed by the Estate Officer has already been challenged as the same suffers from a jurisdictional error and the matter is subjudice. The factum of filing of earlier suit was not denied. It was submitted that apart from the Will previous owner also executed agreement to sell and previous owner directed the defendant to attorn to the plaintiff and defendant paid rent only to the plaintiffs and not other person after atorning to the plaintiffs. It has been stated that defendant is estopped from denying the title of the plaintiffs. Rest of the submission made by defendant was denied by plaintiffs.
8. From the pleadings of the parties, following issues were framed.
1. Whether there is tenant and landlord relationship between the plaintiffs and defendant no.1? OPP.
2. If issue no.1 is answered in favour of the plaintiffs, whether they have validly terminated the tenancy of defendant no.1 and whether they are entitled for the relief of possession? OPP.
3. Whether the plaintiffs are entitled for relief of arrears of rent from 01.04.2003 to 31.03.2006 amounting to Rs. 1,80,000/- with interest @ 18 % amounting to Rs. 64,800/- as claimed? OPP.
[PRECEDENT] Page No. 5 of 25
4. Whether the plaintiffs are entitled to mesne profits @ Rs. 75,000/- p.m or at any other rate w.e.f 01.04.06? OPP.
5. Whether the plaintiffs are entitled for pendente lite and future interest? If yes, on which amount and at what rate? OPP.
6. Relief.
9. In support of his case, plaintiff examined himself as PW-1 and filed his affidavit Ex. PW-1/A deposing on the lines of the averment made in the plaint and relied upon the documents i.e. agreement to sell Ex. PW-1/1, two affidavits of [ENTITY] Ex. PW-1/2, one indemnity bond Ex. PW-1/3. He was cross examined. In cross examination he admitted that Estate Officer has passed eviction order in respect of suit property on 11.06.2001. He also admitted that appeal filed against the eviction order was dismissed vide order dated 18.08.2007. He also admitted that he had got favourable order from the Consumer Forum against the eviction order and that was set aside by the State Commission and challenged before the National Commission failed vide order dated 16.07.2014. He also admitted that suit property has been sealed on 28.01.2016 by the [ACT]. He admitted that he had purchased the suit property from [ENTITY] by virtue of notorised agreement to sell, registered GPA, Will and SPA. He also admitted that he had filed one suit for possession and had issued legal notice dated 01.12.1996 Ex. PW-1/D2 and [ACT] had filed written statement Ex. PW-1/D3 and plaintiffs herein had filed rejoinder Ex. PW-1/D4. He admitted that said suit was dismissed in default on 23.07.1977. He admitted that he had filed site plan of the suit property Ex. PW-1/D5. He admitted that he had proof of service of notice of termination dated 03.03.2006 upon the defendant. He admitted that there is no written lease between plaintiffs and defendant. He denied the suggestion that defendant was [PRECEDENT] Page No. 6 of 25 not the tenant under him.
10. Plaintiff further examined [ENTITY] who is plaintiff no. 2 as PW-2. He deposed that he is the co-owner of the suit property and defendant had been paying rent in the name of [ENTITY] and suit property situated in commercial area and relied upon lease deeds executed by other property owners to prove the rental prevalent in the area. He was cross examined. He admitted that he is not the signatory to the document Ex. PW- 2/1 to PW-2/3 or was executed in his presence nor the terms and conditions thereof settled in his presence. He admitted that lessee mentioned in the lease deed Ex. PW-2/1 to PW-2/3 have never paid any rent in his presence. He denied the suggestion that area is dingy and full of foul smell and therefore, prevalent rate of rent is not as high as claimed by the plaintiff. Plaintiffs closed their evidence thereafter.
11. None of the defendant chose to lead any evidence.
Findings
12. After going through the pleadings and evidence and other materials on record and appreciating the argument put forth by the respective Counsel for plaintiffs and defendant, issue wise findings are as under:-
ISSUE No.1:- Whether there is tenant and landlord relationship between the plaintiffs and defendant No.1? OPP.
13. Onus to prove this issue is upon the plaintiffs. Plaintiffs in paragraph 1 of their plaint have stated that defendant is a tenant at a monthly [PRECEDENT] Page No. 7 of 25 rent of Rs 5,000/- under the plaintiffs in respect of First floor, Mezzanine Floor and Terrace in property No. 26, [ENTITY], Jhandewalan Road, New Delhi- 110055. The premise is shown in site plan filed along with the plaint. In the corresponding paragraph on reply on merits defendant pleaded as under:-
"1. That the contents of para 1 are wrong and are denied. The plaintiffs seek to derive their title to the premises from late [ENTITY]. It is an admitted position that during the lifetime of [ENTITY], the lease of the premises in his favour was cancelled by [ENTITY] and as such the premises reverted to the ownership of [ENTITY]. That being so, any Will allegedly executed by late [ENTITY] would confer any right, title or interest in the premises upon the plaintiffs. Since the plaintiffs were never the owner/lessor of the premises, there could be no question of the existence of a landlord/tenant relationship between the parties."
14. Thus it could be seen that in terms of requirement of provision of [SECTION] [ACT] defendant has not specifically denied the specific submission of the plaintiff and therefore averment of the plaintiff shall be taken to have been admitted. From the tone and tenure of the said submission of the defendant read in the light of entire written statement it appears that defendant is disputing the title of the plaintiffs though without denying its own status in the suit property as tenant.
15. It is apposite to note at this stage that pleading of either party is not straight or simple. However, when the pleadings of the parties is churned out the stand of plaintiffs in simple form is that plaintiffs purchased the suit property from Shri [ENTITY] by virtue agreement to sell, GPA, SPA and Will etc. After the death of [ENTITY] the Will executed by [ENTITY] was probated in favour of the plaintiffs. Defendant was already occupying the suit [PRECEDENT] Page No. 8 of 25 property as tenant @ Rs 5,000/- pm prior to acquisition of the suit property by plaintiffs. Defendant has not paid rent since 1t April 1997. Plaintiffs have terminated the tenancy vide notice dt 3rd March 2006 and has filed the suit for possession apart from arrears of rent and damages.
16. Case of defendant in simple from is that lease in respect of Buliding No. 26 in favour of [ENTITY] from whom allegedly plaintiffs have derived their title, was cancelled by [ACT] on 13 th Oct 1982 and informed him about the cancellation vide letter dt 25th October 1982, therefore [ENTITY] did not have any right, title or interest in the premise either on 26 th December when he is alleged to have executed a Will in favour of plaintiffs or at the time of his death in 1988. Plaintiffs have no right, title or interest in the suit premises and the same is owned by [ACT]. The Estate Officer has already passed an order of eviction against the plaintiffs under the [ACT] and appeal against the eviction order preferred by the plaintiffs has also been dismissed. Neither [ENTITY] nor plaintiffs were left with any right, title or interest in the suit property hence suit is liable to be dismissed.
17. Though in the entire written statement defendant has not clarified its status in the suit property nor did it mention how it came to occupy the same however during cross examination of PW1 when an objection was raised by counsel for Plaintiffs then Ld. Counsel for defendant while meeting such objection stated that even though defendant has paid use and occupation charges to plaintiffs for years he can ask the question to which objection was raised by the Counsel for plaintiffs. Although Ld Counsel for defendant called the payment of rent as "use and occupation charges" which can simply be understood as his attempt to avoid defendant being taken to have admitted to [PRECEDENT] Page No. 9 of 25 existence of landlord/tenant relationship, if he calls the per month payment to plaintiffs as "Rent" instead of "use and occupation charges". Even if it is held that "use and occupation charge" was being paid to plaintiffs that also establishes the fact that plaintiffs were either landlord or owner qua the plaintiffs otherwise such "use and occupation" charges could not have been paid to the plaintiffs.
18. PW1 in his examination chief specifically deposed that defendant after the acquisition of the property by plaintiffs continued to pay rent @ Rs 5,000/- per month excluding of water and electricity charges in the name of plaintiffs. PW1 who is plaintiff No.1 was not cross examined on this specific deposition. Even suggestion to the contrary was not given to the PW-1 to the effect that defendant did not pay rent or "use and occupation charges" to the plaintiffs even for a single month.
19. Moreover, plaintiffs in their plaint have specifically pleaded that defendant has not paid rent since April 1997 and plaintiffs are entitled to the arrears of rent w.ef. 1St April 2003. In reply defendant simply pleaded that "the premises in question are public premises and defendant is not liable to pay any rent to the plaintiffs". Defendant did not specifically plead that it has never paid any rent to plaintiffs at any point of time or that no rent is due w.e.f. April 1997. The cumulative effect of above analysis is that pleading and testimony of plaintiffs to the effect that defendant paid rent @ Rs 5,000/- p.m to the plaintiffs till March 1997 remained unchallenged and unrebutted. Hence plaintiffs have successfully proved that their existed relationship of landlord and tenant between the plaintiffs and defendant.
[PRECEDENT] Page No. 10 of 25 In view of the above issue No.1 is accordingly decided in favour of plaintiffs and against defendant.
ISSUE No. 2 :- If issue no.1 is answered in favour of the plaintiffs, whether they have validly terminated the tenancy of defendant no.1 and whether they are entitled for the relief of possession? OPP.
20. Onus to prove this issue is upon the plaintiffs. This issue depends upon the findings on issue No.1 and has two parts. Since issue No.1 has been decided in favour of plaintiffs, hence findings on issue No.2 is called for. In the first part question is whether plaintiffs have validly terminated the tenancy of defendant No.1. Second, part relates to plaintiffs' entitlement for the relief of possession. It has been stated in the plaint that plaintiffs terminated the tenancy of the defendant vide notice dt 3 rd March 2006 and said notice was duly served upon the defendant. In reply to said assertion of the plaintiffs, defendant in paragraph 3 and 4 of reply on merits in the written statement stated as under :-
"3. That the contents of para 3 are wrong and denied. The plaintiffs never had any right, title or interest in the premises and they were never the owners or the lessors of the same. It is submitted that the plaintiffs had no right whatsoever to cause any notice of termination to be issued to the defendant. The plaintiffs herein preferred an appeal, being [CASE NUMBER], against the said order of eviction of the Estate Officer, [ACT]. However, vide order dated 18.08.2007 the said appeal was dismissed by the court that there was a Lessor/Lessee relationship between the parties, it is submitted it is the plaintiff own case that the lease commenced from the fourth of each calendar month and ended on the third of each month. The purported termination is null and void and contrary to law.
[PRECEDENT] Page No. 11 of 25
4. That in reply to para 4 it is submitted that the purported notice of termination is null and void."
21. Thus, it can be seen that service of notice of termination has not been denied by the defendant. However, it's legality and validity have been questioned on two grounds. Firstly on the ground that plaintiffs were never the owner or lessor of the property and therefore plaintiffs have no right whatsoever to cause any notice of termination to be issued to the defendant. Secondly it has been objected that as per plaintiffs themselves lease commenced from the fourth of each calendar month and ended on the third of each month and therefore purported termination is null and void.
22. [SECTION] of [ACT] provides various modes of determination of lease which includes end by efflux of time {[SECTION]}, by notice of termination {[SECTION]} and forfeiture in case the lessee renounces his character by setting up a title in a third person {[SECTION]. In the present case, while deciding issue no. 1 it was held that there was a relationship of landlord and tenant between the plaintiff and defendant and therefore, in terms of [SECTION] since defendant is setting up a title in the [ACT], therefore, there is termination of lease by the conduct of defendant itself.
23. Ld. Counsel for defendant has contended during the course of argument (which is though not pleaded) that defendant was although paying rent to the plaintiffs but once they came to know that plaintiffs have no right in the suit property as [ACT] which is the paramount lessor has cancelled the lease which was in favour of [ENTITY] from whom plaintiffs claim to have purchased the property, therefore, defendant was not bound to pay rent to the [PRECEDENT] Page No. 12 of 25 plaintiffs and its obligation under [SECTION] of the [ACT] came to an end. It has been further contended that once plaintiffs were not having right, title or interest in the property, he cannot terminate the lease and therefore, issuance of notice by plaintiffs are of no legal value in the eyes of law. It has been further contended that admittedly, as per plaintiffs lease was from 4 th day of each calendar month and ended on 3rd day of the next month therefore, notice dated 03.03.2006 is legally invalid.
24. As far as the date of termination is concerned, it is worthwhile to note that legislature brought about an amendment in 2003 in [SECTION] of [ACT] as per which no objection with regard to termination of tenancy is permitted on the ground that legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as, a period of 15 days was otherwise given to the tenant to vacate the property. The intention of the legislature is, therefore, clear that technical objection should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has the period of 15 days for vacating the tenanted premise. Admittedly, in the present case, vide notice dated 03.03.2006 defendant was given 15 clear days time to vacate. Even otherwise it has been held that in number of case laws relevant of which are M/s [PRECEDENT], [PRECEDENT], [PRECEDENT] that service of copy of plaint of the suit for possession itself amounts to notice of termination and therefore, the objection of the defendant with regard to invalidity of the notice of termination on the ground of date of termination is not sustainable in law.
[PRECEDENT]
25. The next question which is the bone of contention in the present matter is whether the plaintiffs whose lease from the paramount lessor has expired and eviction order has been passed against him, can still be considered landlord qua the tenant or whether in these circumstances, the tenant's obligation under [SECTION] of [ACT] comes to an end and whether the tenant under these circumstances comes out of the shackles of obligation cast under [SECTION] of [ACT]?
26. Ld. Counsel for the defendant has relied upon [ENTITY] v. Balkishan (2002) 2 SCC 50;
"6. We now proceed to examine whether the appellant could have directly attorned to the owner Trust bypassing the respondent-tenant on 01-04-1983, relying on the event of institution of suit for eviction by the owner Trust against the respondent-tenant on 30.03.1983 and whether the said event enables successfully raising of the plea of respondent-tenant's eviction by paramount title, bringing the obligation of the appellant sub-tenant to deliver possession over the tenancy premises to the respondent and to pay rent to him till that date. Under Section 108 clause (q) of the [ACT], in the absence of contract or local usage to the contrary, it is an obligation of the tenant to put his lessor into possession of the property on the termination of the lease. [SECTION] of the [ACT], which codifies the common law rule of estoppal between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppal so enacted has three main features: (I) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the [PRECEDENT] Page No. 14 of 25 landlord; and (iii) [SECTION] of the [ACT] is not the whole law of estoppel between the landlord and tenant. The principles emerging from [SECTION] can be extended in their application and also suitably adapted to suit the requirement of an individual case. Rule of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his sub-tenant in their relations inter se. As held by the Privy Council in Currimbhoy & Co. Ltd. v. L. A. Creet and [PRECEDENT] the estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title-hold. Eviction by paramount title-holder is a good defence bringing to an end the obligation of the tenant to put the lessor in possession of the property under [SECTION] of the [ACT]. The burden of proving eviction by title paramount lies on the party who sets up such defence.
7.What is eviction by the paramount? In [PRECEDENT], J. speaking for the Division Bench and on a review of judicial opinion stated the law in the following terms " To constitute eviction by title paramount no physical dispossession is necessary. If the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even through the tenant is not put out of possession the threat to put him out of possession followed by attornment amounts in law to eviction. If in such circumstances, the tenant openly and to the knowledge of his landlord attorns to the true an owner the estoppel is gone. The attornment, however, must be under compulsion. The party evicting must have a good and present title, and the tenant must have quitted against his will."
(underlining has been done by this court) [PRECEDENT] Page No. 15 of 25
27. On the basis of aforesaid ruling it has been contended by the Ld. Counsel for defendant that defendant has discharged its burden of proving eviction of his landlord (plaintiffs) by title paramount, even without gracing the witness box as plaintiffs categorically admitted that eviction order has been passed against them by the Ld. Estate Officer and they have also admitted that challenged to the said eviction order has also been dismissed by the court of Ld. Additional District Judge. It has been fairly conceded by the Ld. Counsel for defendant that apart from the ruling laid down by the Hon'ble Supreme Court in [ENTITY] (Supra) defendant has no other ground to defend the present suit.
28. Ld. Counsel for plaintiffs in order to meet the contention of the defendant has relied upon [PRECEDENT], [PRECEDENT]; to contend that even if eviction order has been passed against the plaintiffs, defendant is still under obligation to pay rent and handover the possession of the suit property to the landlord upon termination of the lease. He has further submitted that the issue of cancellation of lease by title paramount and eviction and consequent requirement of handing over of possession to title paramount is a matter between the paramount lessor and plaintiffs as a lessee and about which defendant cannot take advantage. It has been further contended that against the dismissal of appeal under the [ACT], plaintiffs had preferred review of the judgment dated 18.08.2007 which was also dismissed vide order dated 15.12.2014 and against both of which plaintiffs herein have filed writ petition before the Hon'ble High Court bearing [CASE NUMBER] and therefore, the eviction order passed against the plaintiffs have not attained finality.
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29. Hon'ble Supreme Court in [ENTITY] (supra) has ruled that tenant's obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title holder. It was further held that eviction by paramount title holder is a good defence bringing to an end the obligation of the tenant to put the lessor in possession of the property under [SECTION] of the [ACT]. It was further held that to constitute a good defence of eviction by title paramount, three conditions must be fulfilled: (1) Eviction must have been from something actually forming part of the premises demised; (2) the party evicting must have a good titled superior to that of the lessor and that of the lessee and (3) that tenant must have quited against his Will.
30. It was further held that to constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied:- (1) the party evicting must have a good and present title to the property ; (2) the tenant must have quited or directly attorned to the paramount title holder against his Will; (3) Either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or their must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words; the paramount title holder must be armed with such legal process of eviction as cannot be lawfully resisted. The burden of raising such a plea [PRECEDENT] Page No. 17 of 25 and substantiating the same, so as to make out the clear case of eviction by paramount title holder, lies on the party relying on such defence.
31. Thus, it has been noted that eviction by title paramount is a good defence to the eviction proceeding against the tenant by his immediate landlord but three condition must be fulfilled :- (1) Eviction must have been from something actually forming part of the premises demised; (2) the party evicting must have a good titled superior to that of the lessor and that of the lessee and (3) that tenant must have quited against his will. Said judgment itself has defined as to what constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into the possession of lease premises. Three conditions must be fulfiled (1) the party evicting must have a good and present title to the property ; (2) the tenant must have quited or directly attorned to the paramount title holder against his will; (3) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or their must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words; the paramount title holder must be armed with such legal process of eviction as cannot be lawfully resisted.
32. In order to make applicable aforesaid requirement it is necessary for the tenant to prove on record that he (tenant) quitted or directly attorned to the paramount title holder against his will. In the entire written statement there is no pleading on the part of the defendant to the effect that defendant has [PRECEDENT] Page No. 18 of 25 attorned in favour of [ACT]. There was only a pleading at one place to the effect that [ACT] has directed it not to pay rent to the plaintiffs. This specific averment of the defendant was specifically denied by the plaintiffs. Thus, there is no attornment in favour of the [ACT]. Even otherwise no one appeared as a witness on behalf of defendant to prove that such a demand was ever made by [ACT]. Even from [ACT], no one appeared to prove that it ever directed the defendant not to pay any rent to the plaintiffs. Hence, one of the important ingredients as culled out by the Hon'ble Supreme Court in [ENTITY] (supra) for discharging the tenant of his obligation under [SECTION] of [ACT], is absent.
33. The other requirement to constitute eviction by title paramount is that either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or their must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words; the paramount title holder must be armed with such legal process of eviction as cannot be lawfully resisted. In respect of third ingredient it has been contended by the defendant that eviction order has already been passed by the Ld. Estate Officer and challenged to the same also met with same result. Per contra, it has been contended that aggrieved from the order of eviction and dismissal of appeal and review application, plaintiffs filed writ petition bearing [CASE NUMBER] which is pending before the Hon'ble High Court and therefore, eviction by title paramount has not attained finality and plaintiffs are currently armed with legal process to resist the eviction. [PRECEDENT] Page No. 19 of 25
34. Pendency of [CASE NUMBER] was not brought to the knowledge by way of application or pleading. It was only during the course of argument and through written argument that for the first time it was brought to the knowledge. Pendency of matter is a fact which in the age of advance technology is a verifiable fact and about which judicial notice can be taken of. Website of Hon'ble Delhi High Court shows pendency of such petition before the Hon'ble High Court and therefore pendency of such writ petition stand established. Perusal of some order in the said writ petition shows that petitioners/plaintiffs have deposited Rs 65 Lakhs with [ACT] for restoration of lease even though once such request has been declined by [ACT]. Be that as it may but the fact is eviction order as merged with appellate Court's order and review order are under challenge in the said writ petition and therefore eviction order has not attained finality which ingredient is one of the important requirements for putting up defence of eviction of landlord by title paramount.
35. Thus, absence of pleading qua the direct attornment in favour of title paramount and absence of finality to the eviction order against landlord/plaintiffs make the rulings of [ENTITY] (supra) upon which defendant has strongly relied upon not applicable in the facts and circumstances of the present case. Thus, in view of the findings recorded on issue No.1 and in view of the fact that there was valid termination of tenancy plaintiffs are entitled to relief of possession in respect of the suit property against defendant. Issue No.2 is thus decided accordingly in favour of plaintiffs and against the defendant.
36. One objection has been raised about the maintainability of the [PRECEDENT] Page No. 20 of 25 present suit on the ground that plaintiffs earlier sue for same relief was admittedly dismissed in default and plaintiffs attempt to restore the suit also failed. It has been contended that therefore, plaintiff is debarred from instituting the present suit. If a suit is dismissed in default under [SECTION] [ACT], plaintiff is debarred from filing fresh suit in respect of the same cause of action. Plaintiffs have specifically pleaded in his plaint in paragraph 8 that upon the dismissal of the suit for non-appearance, plaintiffs accepted the defendant as tenant. Defendant in corresponding paragraph of the written statement there was no specific denial about the assertion of the plaintiffs that defendant was accepted as tenant. [SECTION] [ACT] requires a party to deny a fact specifically and in the absence thereof it is taken to have been admitted by the other parties. Thus, once defendant was accepted as tenant and whose tenancy was terminated by notice dated 03.03.2006 or by serving the copy of the present plaint, the plaintiff had fresh cause of action to file the present suit and therefore, present suit cannot be said to have been filed in respect of the old cause of action on the basis of which previous suit bearing no. CS 37/97 was filed. Hence, defendant's objection that suit is not maintainable on this ground is not sustainable.
In view of the above discussion, Issue No.2 is thus decided accordingly in favour of plaintiffs and against the defendant.
ISSUE No. 3:- Whether the plaintiffs are entitled for relief of arrears of rent from 01.04.2003 to 31.03.2006 amounting to Rs. 1,80,000/- with interest @ 18% amounting to Rs. 64,800/- as claimed? OPP.
37. Onus to prove this issue is upon the plaintiffs. While deciding issue No.1 it was noticed that defendant did not specifically deny the rate of [PRECEDENT] Page No. 21 of 25 rent of the suit property nor did it deny that defendants was in arrears of rent since April 1997. It was held that defendant has been paying rent to the plaintiffs after plaintiffs purchased the property from original lessee (of title paramount) [ENTITY] and rent was paid to the plaintiffs upto April 1997. Therefore, plaintiffs are certainly entitled for arrears of rent legally recoverable. Present suit was filed in March 2006 therefore plaintiffs are entitled to recover arrears of rent for a period of three year immediately preceding the filling of the present suit. Thus, plaintiffs are entitled to recover arrears of rent from April 2003 till March 2006 @ Rs 5,000/- per month amounting to Rs 1,80,000/-. Upon this, arrears of rent plaintiffs are also entitled for interest but 18% p.a. annum is on higher side. [ACT] provides for charging of interest at the rate of 15% p.a. on arrears of rent. Accordingly, in the interest of justice plaintiffs are certainly entitled for simple interest at the rate of 15% p.a. Thus issue No.3 is accordingly decided in favour of plaintiffs and against the defendant.
ISSUE No. 4:- Whether the plaintiffs are entitled to mesne profits @ Rs. 75,000/- p.m or at any other rate w.e.f 01.04.06? OPP.
38. Onus to prove this issue is upon the plaintiffs. Plaintiffs have claimed mesne profits at the rate of Rs 75,000/-per month. PW-1 in his examination in chief deposed that such rate is prevalent in the area. PW-2 brought certified copy of registered lease deed dt 14.08.2007 Ex PW-2/1 (wrongly numbered as PW1/1) of first floor of 36, Rani Jahnsi Road New Delhi having area of 5200 sq ft which has been leased at Rs 2,50,000/- per month w.e.f June 2007. Thus said property has been leased approximately at the rate of Rs 48 per sq ft. Another certified copy of registered lease deed Ex PW2/2 (wrongly numbered as PW1/2) of the Second floor and third floor of [PRECEDENT] Page No. 22 of 25 same property which was having area 4300 sq ft on second floor and 3150 sq ft on the third floor and was leased at the rate of Rs 2,23,000/- w.e.f. Oct 2006. He also brought another certified copy of registered lease deed Ex PW2/3 (wrongly numbered as PW1/3) of Second Floor of the building No. 59 Rani Jhansi Road ad measuring 3200 sq ft having been let out at the rate of Rs 3,60,000/- per month w.e.f August 2010. No suggestion was given to PW1 that no such rent is prevalent in the area. Similarly, no such suggestion was given to PW2. Execution of lease deeds Ex PW2/1 to Ex PW2/3 were sought to be questioned on the ground that they were not executed in the presence of PW2. It was not disputed that no such lease deeds were ever executed by the parties therein. Two of the lease deeds are with M/s Infotech Limited a reputed company. Thus, plaintiffs have successfully proved the lease deeds Ex PW-2/1 to Ex PW-2/3 by producing the certified from the office of Sub Registrar.
39. Awarding damages inevitably involves some amount of guess work. Plaintiffs have successfully proved rate of rent prevalent in the area. Defendant has not led any evidence to the contrary. Although plaintiffs has not led any evidence as to how much area is under the possession of the defendant so as to calculate the rate of damages at the rate of Rs 48 per sq ft per month. Therefore, some other guess work has to be applied. Plaintiffs purchased this suit property in 1986 and at that time defendant was paying rent at the rate of Rs 5,000/- per month. So after 20 years if defendant had the suit property on fresh lease, he would have been required to pay at least Rs 35,000 p.m because normally prices of everything on an average has increased seven to ten times in Delhi. Hence, in these circumstances damages at the rate of Rs 35,000/- per month would be neither too low nor too high. Accordingly, plaintiff is held entitled to damages at the rate of Rs 35,000/- per month from [PRECEDENT] Page No. 23 of 25 the date of institution of the suit till the actual vacation of the suit property. Thus issue No.4 is decided accordingly in favour of plaintiffs and against the defendant.
ISSUE NO. 5 Whether the plaintiffs are entitled for pendente lite and future interest? If yes, on which amount and at what rate? OPP.
40. Onus to prove this issue is upon the plaintiffs. Plaintiffs have successfully proved that they are entitled for arrears of rent with interest @ 15% per annum till the filing of the suit. They have also proved that they are entitled for damages @ Rs. 35,000/- from the date of service of notice dated 03.03.2006. Since, defendants were held liable for payment of damages @ Rs. 35,000/- per month from April, 2006 by this judgment, therefore, interest on the damages will be payable only from the date of judgment.
41. [SECTION] of [ACT] provides for grant of pendentilite interest at such rate as the court deems reasonable to be paid and future interest at such rate not exceeding 6% per annum and in case of commercial transaction rate of further interest may exceed 6% per annum but shall not exceed the contractual rate of interest or where there is no contractual rate the rate at which money are lent or by advanced by nationalised bank in relation to commercial transactions. In view thereof, this court considers it reasonable if pendentilite simple interest and future interest is granted @ 4% per annum. Thus, plaintiff are held entitled for simple interest @ 4% per annum on the arrears of rent amounting to Rs. 1,80,000/- from the date of judgment till realisation. Plaintiffs are also entitled for simple interest @ 4% per annum from the date of the present judgment/decree till actual realisation on the [PRECEDENT] Page No. 24 of 25 quantum of damages calculated at the rate of Rs. 35,000/- from April, 2006 till defendant hand over the possession.
Relief:-
In view of the above, suit of the plaintiffs is allowed and a decree for recovery of possession of the first floor, mezzanine floor and terrace in property no. 26, [ENTITY], Jhandewalan Road, New Delhi as shown in the site plan Ex. PW-1/2, is hereby passed in favour of plaintiff and against the defendant.
A decree of recovery of sum of Rs. 1,80,000/- with interest @ 15% per annum calculated from the date of arrear till the filing of the suit along with pendetilite and future interest @ 4% per annum till realisation, is hereby passed in favour of plaintiffs and against the defendant.
A decree of damages @ Rs. 35,000/- per month from April, 2006 till actual handing over the possession of the suit property with interest @ 4% per annum from the date of judgment/decree till actual realisation, is hereby passed in favour of plaintiffs and against the defendant.
Cost of the suit is also awarded in favour of plaintiffs. Plaintiff shall pay deficient court fee on the quantum of damages. Decree sheet be prepared accordingly.
It is made clear that word "defendant" means "Aristo Pharmecuticals Ltd".
File be consigned to Record Room after necessary compliance. ([ENTITY]) Announced in open Court ADJ-13(Central)/THC (Judgment contains 25 pages) Delhi/06.05.2017 [PRECEDENT] Page No. 25 of 25