IN THE COURT OF NAVEEN K. KASHYAP, SENIOR CIVIL JUDGE-CUM-RENTCOLLER, NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI. Civil Suit no: 494/18 Sh. [ENTITY] S/o. Late Sh. Kishan Chand Nagpal R/o. DDA LIG Flat No. 73-C, Block-WP Maurya Enclave, Pitam Pura, Delhi-34. Plaintiff Versus Sh. [ENTITY] S/o Sh. Chatar Bhuj Kukreja R/o. DDA, LIG Flat No. 73-C, Top floor, Block- WP, Maurya Enclave, Pitampura, Delhi-34. Defendant Date of Institution : 12.04.2018 Date of pronouncing judgment : 13.11.2018 Decision : Suit ex parte decreed. EX -PARTE FINAL JUDGMENT 1.
The present suit is for possession, permanent injunction, recovery of arrears of rent and damages/mesne profit.
2. The version of the plaintiff is that Plaintiff is sole and absolute BhushanKumarNagpal DharmenderKukreja owner of the top floor including roof rights of flat no. 73-C, Block WP, Maurya Enclave, Pitampura, Delhi-34. That the plaintiff has constructed one floor upon his top floor of aforesaid flat in question.
That the defendant is the tenant in respect of flat No. 73-C, Block WP, Maurya Enclave, Pitam Pura, Delhi, at the monthly rent of Rs. 11,500/- for a period of 22 months only for residential purpose vide rent agreement registered before Sub Registrar, District North/West, Delhi, on 29.08.2014 and the tenancy commenced w.e.f. 01.09.2014. That on 23.06.2016, the tenancy of the defendant was further extended for a period of 22 months and rent was enhanced which was fixed @ Rs. 13,200/- per month excluding electricity and water charges. It was agreed that rent shall be enhanced 10% after one year. The said rent agreement was made on 05.07.2016 and was registered before Sub Registrar VI-A, Delhi. That it was decided that defendant shall pay Rs. 30,000/- in cash as security deposit which is refundable at the time of expiry of rent agreement after deduction of dues and damages but the defendant did not pay the same till filing of the present suit. That the defendant stopped payment of rent since after 01.05.2017 for which plaintiff reminded and requested to the defendant for making of payment of rent but did not pay the same.
That the plaintiff sent a legal notice dated 12.01.2018 to the defendant thereby terminating the tenancy of the defendant by 27.12.2017. The said notice was duly replied by the defendant. Hence, the present suit has been filed.
It is prayed that a decree of possession in respect of suit BhushanKumarNagpal DharmenderKukreja property/ tenanted premises i.e. top floor of flat bearing No. 73-C, Block WP, Maurya Enclave, Pitam Pura, Delhi be passed in favour of the plaintiff and against the defendant.
It is further prayed that a decree of recovery of a sum towards the arrears of rent since 01.05.2017 in favour of the plaintiff and against the defendant with damages charges.
It is also prayed to pass a decree of permanent injunctino in favour of the plaintiff and against the defendant restraining him or any body acting on his behalf from creating any third party interest and/or transferring, alienating, parting with the possession of the suit property.
3. Summons were served upon the defendant through Process Server on 25.04.2018. Nobody had appeared on behalf of defendant despite service. As such defendant was proceeded ex- parte vide order dated 30.08.2018. Thereafter, the matter was fixed for ex parte plaintiff's evidence.
4. The plaintiff examined himself as PW-1 and proved his over all case by evidence by way of affidavit Ex. PW-1/1. In such evidence, he repeated the stand taken by him in original suit. Further, he proved the various documents i.e. site plan is Ex. PW- 1/1, photocopy of rent agreement dated 29.08.2014 is Ex. PW-1/2 (OSR), second rent agreement dated 23.06.2016 is Ex. PW-1/3 (OSR), legal notice dated 12.01.2018 is Ex. PW-1/4, three postal receipts is Ex. PW-1/5 (OSR), second legal notice dated 08.03.2018 is Ex. PW-1/6, copy of reply dated 12.03.2018 is Ex. PW-1/7, copy of Aadhar card of plaintiff is Ex. PW-1/8 (OSR), original electricity bill dated 24.11.2017 is Ex. PW-1/9, copy of BhushanKumarNagpal DharmenderKukreja property identification card issued by NDMC in favour of plaintiff is Ex. PW-1/10 (OSR). The plaintiff did not examine any other witness and the ex-parte plaintiff's evidence was closed.
5. I have heard ex-parte final arguments of Ld. counsel for plaintiff and gone through the record. It may be noted that at the stage of final ex-parte arguments, the defendant again appeared in person but did not address any final arguments.
6. As the defendant is ex-parte, the testimony of plaintiff remained unrebutted. As such this court has no reason not to believe the same. On a bare perusal of evidence of PW-1, particularly in view of rent Agreement Ex. PW 1/2 registered on 30.08.2014 read with subsequent rent agreement Ex. PW-1/3 registered on 05.07.2016, and related documents/legal notice/reply to legal notice Ex. PW-1/4, Ex. PW-1/6 and Ex. PW- 1/7, it is held that plaintiff is able to prove there is landlord tenant relationship between the plaintiff and defendant. It is further proved that initial rate of rent was Rs. 11,500/= p.m. excluding water and electricity charges etc. Thus, it is held that as such suit premises in question does not fall within the ambit of [ACT].
Further, the identity and description of suit premises in question is also not is dispute.
7. Further the plaintiff proved that he sent on 15/01/2018 through registered post Ex PW1/5, the legal notice EXPW-1/4 dated 12.01.2018. At this stage, it is to be noted that there is a presumption of service as per [SECTION] of [ACT] and [SECTION] of [ACT] as the Legal Notice EX PW-1/2 BhushanKumarNagpal DharmenderKukreja was sent through registered post and . In [PRECEDENT]; it was observed by Honorable Apex Court that the principle incorporated in [SECTION] can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. It was further observed that when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (d) to the proviso of [SECTION] of the Act. The said judgment was relied upon by Full Bench of Honorable Apex Court in [PRECEDENT] and it was observed that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. The ratio of such judgment can equally be applied for present purpose also.
8. Thus, service of notice stands proved as per [SECTION] of [ACT] and [SECTION] of [ACT] as the same was sent through registered post on 15.01.2018 Ex. PW 1/5. Thus,legalnoticeinquestiondeemedtobeserved.Evenotherwise, inthiscase,itappearsthattherewassomereplyEx.PW1/6bythe defendantsidesubsequenttosuchlegalnotice.
9. The tenancy of the defendant therefore, stood terminated on BhushanKumarNagpal DharmenderKukreja expiry of a period of 15 days from the date of receipt of legal notice.
10. On termination of tenancy the status of the defendant in the suit premises has been reduced to that of an unauthorized occupant/ trespasser. The result is that the defendant is liable to hand over the vacant and peaceful possession of the suit premises to the plaintiff.
11. Further, vide such notice, the defendant was asked to vacate the suit premises in question. Thus, thereafter the defendant has no right to continue in the suit property and is under an obligation to hand over vacant possession to the plaintiff. Thus, the plaintiff is entitled to recovery of possession of the suit property as prayed by him.
12. Further this court is required to determine whether the defendant shall be called upon to pay arrears of rent, damages/mesne profit for use of property, if so, with effect from what date, for what period and at what rate.
13. In considered view of this court, the defendant is liable to pay arrears of rent as well as damages/mesne profit of the suit property. As held above, the tenancy of the defendant stood terminated and yet the defendant continued to occupy the suit property. For such occupation, he must pay charges to the plaintiff. Reliance in this behalf is placed on the case of [PRECEDENT] wherein Hon'ble High Court of Delhi held that in such circumstances, it is obligatory on the tenant to pay charges for his use of the premises after termination of tenancy. It was observed :
BhushanKumarNagpal DharmenderKukreja "In a landlord tenant dispute where their relationship is admitted, the obligation of the tenant to pay rent for the tenanted premises during the period that the tenant is in occupation of the premises cannot be disputed. Inherent in this admission is embedded an obligation to pay the rent/occupation charges, because the admission of the said relationship excludes a claim based on any other title to the property. The relationship between a landlord and a tenant is one where the tenant agrees to pay the rent/occupation charges in consideration for the right granted to him by the landlord to use and occupy the premises. Therefore, he cannot, while being in use or occupancy of the premises, not pay the rent/occupation charges therefor."
14. Hence, it is clear that the defendant is required to pay charges to the plaintiff for use of the suit property. The next question which needs to be determined is the date with effect from which the defendant must pay these charges/arrears of rent to the plaintiff for use of the suit property.
15. It has already been held above that the tenancy in question had been terminated by legal notice dated 12.01.2018, Ex PW-1/4 which was sent through registered post on 15.01.2018 , Ex PW-1/5.
Further, as per the evidence on record and as discussed above, in ordinary course such legal notice sent through speed post/registered post it is deemed to be served within one week. Thus, it is deemed to be served by 22.01.2018. Therefore, in any case the tenancy in question deemed to be terminated on expiry of fifteen days from service of legal notice Ex. PW-1/4 i.e. on 07.02.2018. And the defendant is liable to make payment of BhushanKumarNagpal DharmenderKukreja arrears of rent for his use of the property till the said termination. Further defendant is also liable to pay mesne profits/damages for the subsequent period which is from 08.02.2018 in present suit.
16. As per evidence on record, it was agreed between the parties on 23.06.2016 that rate of rent will be Rs. 13,200/- per month excluding electricity and water charges. It is further deposed by PW-1 that such rate of rent was to increase by 10% after one year. As such, it is held that rate of rent stood increased to Rs. 14,520/- per month w.e.f. 01.07.2016.
17. It is further deposed by plaintiff that defendant did not tender or pay the rent since 01.05.2017, as deposed him in evidence by way of affidavit. Further there is not evidence to contrary on record in this regard. Thus, it is held that the defendant is in arrears of rent since 01.05.2017.
18. As such defendant is liable to pay such arrears of rent w.e.f. 01.05.2017 till 30.06.2017 i.e. for two months @ Rs. 13,200/- per month. It is further held that such defendant is liable to pay such arrears of rent at enhanced rate @ Rs. 14,520/- per month w.e.f. 01.07.2017 till the date of termination of tenancy i.e. on 07.02.2018.
19. Further thereafter i.e. from 08.02.2018 till filing of present suit (on 12/04/2018), defendant is liable to pay charges for use of the property.
20. The quantum of the said charges is next required to be ascertained. As held above, the tenancy stood terminated on 07/02/2018 vide legal notice EX. PW-1/4. As such for the subsequent period the plaintiff is entitled to recover BhushanKumarNagpal DharmenderKukreja damages/mesne profits.
21. Mesne profits has been defined by [SECTION] of [ACT] as profits which the wrongful occupant actually received or might have, with ordinary diligence, received. It has been consistently laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent.
22. The plaintiff examined himself as PW-1, inter alia, in this respect. PW-1 deposed that he is entitled to damages @ Rs.1,000/- per day w.e.f. 01/05/2017, At the same time it is to be noted that the defendant is ex-parte as such there is no evidence to the contrary.
23. As such having regard to the original rate of rent agreed between the parties and general inflationary trends, the market rate of rent can be taken atleast to be the current rate of rent i.e. Rs. 14,520/- per month. Further, it is also observed in the case of [PRECEDENT], the rate of rent agreed upon between them is suggestive of the market rate and the said rate can be treated to be the quantum of mesne profits which the defendant is liable to pay for use of the premises each month. It is held that plaintiff is entitled to recover damages/mesne profits from the defendant at the said rate of Rs. 14,520/= p.m. from 08/02/2018 till filing of present suit i.e. till 12/04/2018.
24. In terms of [SECTION] of [ACT], plaintiff is entitled to pendente lite interest on the aforesaid arrears of rent as well as mesne profit/damages at the rate of 6% per annum from the date of institution of the suit till the date of decree and future BhushanKumarNagpal DharmenderKukreja interest at the rate of 6% per annum from the date of decree till realization.
25. During the pendency of the suit i.e. from 13/04/2018 till date, the defendant remained in illegal occupation of the suit property. For such illegal use and occupation of the suit property, the defendant is liable to pay mesne profits/damages to the plaintiff. Mesne profits/damages shall be continued to be paid by the defendant to the plaintiff till vacant possession of the suit property is finally handed over to the plaintiff. It has already been held above that market rate of rent in the facts and circumstances of present case is Rs. 14,520/- per month. Further, this is less then the same amount which is claimed by the plaintiff in the notice, Ex. PW1/4. As such it is deemed fit to grant damages/mesne profits at the rate of Rs. 14,520/= per month to be paid by the defendant to the plaintiff with effect from date of passing the present decree till the date of actual handing over of physical possession of suit property.
Relief:
26. In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiff and against the defendant and :
(i)A decree of possession is passed in favour of the plaintiff and the defendant is directed to hand over vacant possession of the suit property top floor including roof rights of flat no. 73-C, Block WP, Maurya Enclave, Pitampura, Delhi-34, as shown in red in the site plan Ex PW-1/1.
(ii) Further, a decree for recovery of money is passed in favour BhushanKumarNagpal DharmenderKukreja of plaintiff and against the defendant on account of arrears of rent w.e.f. 01.05.2017 till 30.06.2017 i.e. for two months @ Rs.
13,200/- per month.
Further, a decree for recovery of money is passed in favour of plaintiff and against the defendant on account of arrears of rent at enhanced rate @ Rs. 14,520/- per month w.e.f. 01.07.2017 till the date of termination of tenancy i.e. on 07.02.2018. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6% per annum from the date of decree till realization.
(iii) Further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff damages/mesne profits at the rate of @ Rs 14,520/= from 08/02/2018 till filing of present suit on 12/4/2018 The plaintiff is also entitled to pendente lite interest on the afore said sum at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6% per annum from the date of decree till realization.
(iv) A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff pendente-lite mesne profits computed at the rate of Rs. 14,520/= per month from the date of institution of the suit till the date of decree.
The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6% per annum from respective due month till the date of decree and future interest thereon at the rate BhushanKumarNagpal DharmenderKukreja of 6% per annum from the date of decree till realization.
(v) A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff future damages/mesne profits computed at the rate of Rs.14,520/= per month from the date of decree till the date on which vacant possession is handed over by the defendant to the plaintiff.
The plaintiff is also entitled to future interest thereon at the rate of 6%per annum from respective due month till its realization.
(vi) The plaintiff is entitled to recover costs of the suit from the defendant.
27. The direction for recovery of arrears of rent, pendente lite damages/mesne profits shall be executable only after payment appropriate court fee thereon after setting off the court fee already paid on the aforesaid sum by the plaintiff at the time of institution of the plaint.
28. Decree sheet shall be prepared accordingly. Reader is directed to prepare the decree sheet only after adjustment regarding such court fees.
29. File be consigned to Record Room.
[ENTITY] Date: 2018.11.13 15:42:05 KASHYAP +0530 Announcedintheopencourt(NaveenKr.Kashyap)
on13thDayofNovember,2018SeniorCivilJudgecumRent Controller,NorthWestDistrict Courts,Delhi.
BhushanKumarNagpal DharmenderKukreja