IN THE COURT OF SH. PANKAJ ARORA, LD. CIVIL JUDGE, WEST, THC, DELHI Suit No. 177/12 Sh. R.B. Malhotra, S/o Late Sh. Amarnath Malhotra, R/o 7/23, South Patel Nagar, New Delhi - 110008. Plaintiff. Vs. Sh. [ENTITY], S/o Sh. Maharaj Singh, R/o 7/23, South Patel Nagar, First Floor, New Delhi 110008 Defendant. Date of institution: 03.06.2010. Date on which Judgment reserved: 03.01.2013. Date of Decision: 03.01.2013. SUIT FOR RECOVERY OF POSSESSION, ARREARS OF RENT AND DAMAGES/MESNE PROFITS JUDGMENT
Brief facts of the case are as follows: 1 It is the case of the plaintiff that he is the landlord/owner of property bearing no. 7/23, South Patel Nagar, New Delhi110008.
2 It is further stated that the defendant was the tenant in respect of first floor of the abovesaid property measuring 1200 sq. ft. (hereinafter referred to as suit premises) by virtue of a registered Lease Deed dated 04.05.2002 duly registered as Document No. 7035 in Block No. 2, Volume No. 10266 on pages 151 to 155 Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 1 of 11 on 04.05.2002. The said Lease Deed dated 04.05.2002 was duly signed by both the parties i.e. plaintiff and defendant.
3 It is further stated that the said Lease Deed dated 04.05.2002 was for a period of 24 months commencing from 01.05.2002 and expiring on 30.04.2004. According to the terms and conditions of the said Lease Deed, the defendant was under the legal obligation to pay in advance the monthly rent per month on or before 5th day of each English Calender month. According to the terms and conditions of the Lease Deed, the lessee was also liable to pay the electricity, water charges etc. separately to the concerned department as per the bills raised.
4 It is further stated that tenancy premises were initially let out by the plaintiff vide Registered lease agreement dated 04.05.2002 for a fixed period of 24 months commencing from 01.05.2002 which was terminated on 30.04.2004 at a monthly rent of Rs. 8400/ which was enhanced periodically and is now Rs. 12,500/ w.e.f. 01.02.2010.
5 It is further stated that the defendant had paid in advance Rs. 20,000/ as security deposit without any interest which was to be refunded at the expiry of lease period of vacation of the premises after deducing all outstanding bills or electricity, water, breakages, damage of fittings, if any or any outstanding rent or any other dues pending by the plaintiff.
6 It is further stated that the Lease Deed dated 04.05.2002 came to an end on 30.04.004 by efflux of time, but the defendant despite the assurance that he would vacate the suit/tenanted premises on the expiry of the lease period fixed Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 2 of 11 under Lease Deed dated 04.05.2002 did not vacate the same and is still in the illegal and unauthorized occupation of the tenanted/suit premises. It is claimed that the defendant as such is liable to pay damages / mesne profit at the prevalent market rate which is Rs. 25,000 PM till the time defendant hands over the possession of the premises to the plaintiff.
7 It is further averred that the defendant has been irregular in the payment of rent and has also sublet and parted with possession of the premises and to his brother and his family who are outsiders in violation of the lease. Defendant's brother's complete family consisting of his wife, 2 sons, 2 daughters are staying permanently. Their name appears in voting list. Children are studying in Delhi schools.
8 It is further stated that the defendant had been further transferred outside Delhi and is as senior marketing officer, Ministry of Agriculture, Govt. of India, Chandigarh and as such as per clause 6 of the lease deed, the lease deed automatically stood terminated.
9 It is further stated that the plaintiff who is 98 years of age and has been orally as well as in writing requesting the defendant to vacate the premises but the defendant has been making false promises and even gave a written undertaking on 28.10.007 to vacate the premises within a period of six months but despite undertaking defendant has been failed to vacate the premises.
10 It is further stated that the lease was for period of 2 years and expired by efflux of time. In any case, without prejudice to the fact that the lease already Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 3 of 11 stood determined by efflux of time after the expiry of 2 years from the date of commencement of lease, the plaintiff as matter of abundant precaution by way of legal notice dated 27.04.2010 terminating the tenancy / lease on the midnight of 31st May, 2010 or by the end of tenancy month which the defendant deemed to be the tenancy month which expired after 30 days of receipt of the legal notice thereby giving clear more than 30 days notice of termination.
11 The plaintiff has, therefore, prayed for a decree for possession in respect of the first floor of premises no. 7/23, South Patel Nagar, New Delhi110008 as more specifically shown red in the site plan attached in favour of the plaintiff and against the defendant, directing the defendant to remove its belongings and to deliver the peaceful physical possession thereof to the plaintiff.
12 The plaintiff has also prayed for a decree of Rs. 12,500/ towards rent for the month of May, 2010 be passed in favour for the plaintiff and against the defendant.
13 The plaintiff has also prayed for a decree for future damages/mesne profits at the prevailing market rate of rent @ Rs. 25,000/ month in respect of first floor of entire premises bearing no. 7/23, South Patel Nagar, New Delhi 110008 from the date of filing of suit till the vacant and physical possession is delivered to the plaintiff .
14 The plaintiff has also prayed for pendentelite and future interest on the aforesaid amount @24% from the date of filing of suit till the realization of the amount be also awarded to the plaintiff and against the defendant.
Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 4 of 11 15 Preliminary objections taken by the defendant in his written statement are as follows:
i) It is stated by the defendant in his written statement that he is a bonafide legal tenant of the suit property vide Lease Deed dated 04.05.2002, which was renewed upon mutual consent and lastly it was renewed in January, 2010 when Deed of draft was exchanged between the parties for further period of 2 years, hence, the question of vacating the same prior to the expiry of the tenancy period, does not arise at all.
ii) It is further stated by the defendant in his written statement that no legal notice ever been served upon the answering defendant.
16 During the pendency of this suit, the plaintiff has expired and his LRs were substituted vide order dated 11.05.2012.
17 On the basis of the pleadings, following issues were framed:
1) Whether the plaintiff is entitled to recover the possession of the suit property as prayed for? OPP.
2) Whether the plaintiff is entitled to the recovery of arrears of rent as prayed for? OPP.
3) Whether the plaintiff is entitled to the recovery of damages/mesne profits, if yes, then at what rate and for which period? OPP.
4) Whether the plaintiff is entitled to interest, if yes, then at Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 5 of 11 what rate and for which period? OPP.
5) Whether the tenancy between the parties was renewed by agreement in January, 2010? OPD.
6) Relief. 18 Thereafter, in support of his suit, the plaintiff had examined himself as
PW1 . Sh. [ENTITY] from the NDPL was examined as PW2 for proving the record pertaining to the electricity connection which was exhibited as Ex. PW2/1. Sh. [ENTITY] from the office of MCD was examined as PW3 for proving the receipt of house tax payment dated 21/06/10 which was exhibited as Ex. PW3/1. Sh. [ENTITY] from the office of SubRegistrar II, Janak Puri was examined as PW4 for proving the registered saledeed between the plaintiff and the defendant which was exhibited as Ex. PW1/5. Sh. [ENTITY] from the Delhi High Court Post Office was examined as PW5 for proving the postal receipt dated 28.04.2010 bearing no. 9801 addressed to Sh. [ENTITY] (defendant herein) which was exhibited as Ex. PW5/1. Sh. [ENTITY] was examined as PW6 and he was the attesting witness to the lease deed executed in a similar property situated at 7/43, South Patel Nagar, New Delhi. Sh. [ENTITY] was examined as PW7. However, he was not brought for crossexamination. Vide separate statement by Ld. Counsel for the plaintiff, PE stood closed vide order dated 11.05.2011.
On the other hand, the defendant has examined himself as DW1. In his evidence by way of affidavit, he has reaffirmed and reiterated the averments made in the written statement. He has relied upon the following documents: Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 6 of 11
1) The rent receipt which is Ex. DW1/1 (Colly).
2) The photograph of the property which is Ex. DW1/2.
3) The photograph of the tenanted property which is Ex. DW1/3 (Colly).
19 Issuewise findings of this Court are as follows: Issue No. 1.
Onus to prove this issue was upon the plaintiff. In support of his suit, the plaintiff had examined himself as PW1 wherein he had reaffirmed and reiterated the averments made in the plaint. The plaintiff has relied upon following documents:
1) The receipt of property tax, bill of electricity & voting list which are Mark A to C.
2) The site plan which is Ex. PW1/4.
3) The lease deed dated 04.05.2002 which is Ex. PW1/5.
4) The voting list which is Mark D. 5) The posting list of defendant which is Mark E. 6) The written undertaking given by the defendant dated 28.10.07 which is Ex. PW1/8. 7) The legal notice, UPC, Regd. Slip & AD Card which are Ex. PW1/9 to Ex. PW1/12.
Tenancy has been admitted by the defendant in his written statement itself. However, the defendant has not admitted the receipt of legal notice for Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 7 of 11 eviction. It is well settled law that filing of suit in itself is considered as notice to quit under [SECTION] of the [ACT]. It has been held by Hon'ble Supreme Court of India in [PRECEDENT] on 10 December, 2007 that, "It is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under [SECTION] of the [ACT] in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this court in [PRECEDENT]."
Accordingly, the plaintiff is entitled to recover the possession of the suit property.
This issue is, therefore, decided in favour of the plaintiff and against the defendant.
Issue Nos. 2.
Onus to prove these issues was upon the plaintiff. During the course of his crossexamination of PW1, it is stated by PW1 that the rent was further increased in January, 2010 at Rs. 12,500/ and it is also stated by him that he has been receiving the rent @ Rs. 12,500/ from the end of January, 2010 onwards except the rent for the month of May & June, 2010.
However, It is also stated by him(in his crossexamination) that he was not maintaining any account or record regarding the rent paid. Further, he has Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 8 of 11 admitted the suggestions that he is receiving the rent up to date in the later part of his crossexamination. Plaintiff has, therefore, failed to prove if there is any arrears of rent to be paid by the defendant.
Accordingly, this issues is hereby decided in favour of the defendant and against the plaintiff.
Regarding the claim of mesne profit, Sh. [ENTITY] was examined as PW6 on behalf of plaintiff and he claimed to be the attesting witness to the lease deed executed in a similar property situated at 7/43, South Patel Nagar, New Delhi. It is pertinent to note that PW6 has not brought any original sale deed of the similar property. Sh. [ENTITY] was examined as PW7. However, he was not brought for crossexamination. Therefore, his evidence can not be read.
In this regard it has been held by Hon'ble Supreme court of india in case titled as [PRECEDENT] that, "Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in [ENTITY] v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in [PRECEDENT]. [PRECEDENT] and the Bombay High Court in [PRECEDENT]. The Madhya Pradesh High Court in [PRECEDENT] also followed the Privy Council decision in [ENTITY]'s case (supra). The Allahabad High Court in Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 9 of 11 [PRECEDENT]. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in [PRECEDENT]. , drew a presumption under [SECTION] of the [ACT] against a party who did not enter into the witness box."
Apart from the said two witnesses, no other witness nor any document was filed on behalf of the plaintiff in support of the claim of mesne profit @ Rs. 25000/ per month. Accordingly, this court assumes the damages as well as mesne profit and future rent to be paid by the defendant @ Rs. 12,500/ per month from the date of filing of the suit till the handing over of possession of suit premises which shall be increased by 10% after the expiry of each calendar year beginning from the date of filing the suit.
There is no document on record to show as to how plaintiff is claiming the interest @ 6% on arrears of rent. Accordingly, this Court hereby assumes the interest @ 6% to be paid by the defendant.
Issue No. 5.
Onus to prove this issue was upon the defendant. It is well settled law that lease for the period exceeding one year can be created only by way of registered instrument. The defendant has relied upon only one draft document in that regard. Even the original document is not filed on record. There is no registered agreement for extension of lease. There is nothing on record to show that the tenancy between the parties was renewed by agreement in January, Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 10 of 11 2010.
Accordingly, this issue is hereby decided in favour of the plaintiff and against the defendant.
In view of the findings on the issue no. 5 by this Court, suit of the plaintiff is hereby decreed. The plaintiff is entitled to recover the possession of the suit property. The defendant is hereby directed to handover the possession of the suit property to the plaintiff within 30 days from today. Plaintiff is also entitled for damages as well as mesne profit and future rent to be paid by the defendant @ Rs. 12,500/ per month from the date of filing of the suit till the handing over of possession of suit premises (after deducting any amount already recovered) which shall be increased by 10% after the expiry of each calendar year beginning from the date of filing the present suit.
Decree sheet be prepared separately.
File be consigned to the Record Room.
Announced in the open Court On 03, January, 2013.
([ENTITY]) CJ/West08/THC/DELHI 03.01.2013 Sh. R.B. Malhotra Vs. Sh. [ENTITY]. Page No. 11 of 11 03.01.2013.
Present: None.
Vide separate Judgment dictated in the open court, suit of the plaintiff is hereby decreed. The plaintiff is entitled to recover the possession of the suit property. The defendant is hereby directed to handover the possession of the suit property to the plaintiff within 30 days from today. Plaintiff is also entitled for damages as well as mesne profit and future rent to be paid by the defendant @ Rs. 12,500/ per month from the date of filing of the suit till the handing over of possession of suit premises (after deducting any amount already recovered) which shall be increased by 10% after the expiry of each calendar year beginning from the date of filing the present suit.
Decree sheet be prepared separately.
File be consigned to the Record Room.
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