IN THE COURT OF SH. NAVEEN K. KASHYAP: CIVIL JUDGE01, SOUTHWEST DISTRICT, DWARKA COURTS, NEW DELHI CS No: 289/2012 Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam, New Delhi Through Sh. [ENTITY] Authorised Representative Plaintiff Versus Sh.[ENTITY] S/o Late Sh.Daulat Ram, R/o H.No.956,Harizan Mohalla, Shahbad Mohdpur, New Delhi Also At: Shop No. 20, Dada Dev Mandir Prabhandak Sabha (Barah Gaon), Palam, New Delhi Defendant SUIT FOR RECOVERY OF POSSESSION, RECOVERY OF ARREARS OF RENT/MESNE PROFITS/ DAMAGES AND PERMANENT INJUNCTION Date of Institution of the case :16/10/2013. Date on which judgment was reserved :Not Reserved 1 of 16 Date of decision :19/08/2013 Decision :Suit Partly Decreed. J U D G M E N T
1. This is a suit for recovery of possession, recovery of arrears of rent/mesne profits/ damages and permanent injunction, filed by a landlord against a tenant whose tenancy stands allegedly determined. The plaintiff society claims itself to be the owner of the Dada Dev Mandir complex situated at Khasra No. 135 measuring 17 Bighas 1 Biswas in the revenue estate of Village Palam, Delhi.
2. It is further the case of the plaintiff that in the front portion of the temple complex there are 54 shops which have been let out to different tenants. The defendant is a tenant in shop No. 20 (hereinafter referred to as suit premises) at a rent of Rs.1,500/ per month excluding other charges, under the plaintiff.
3. The grievance of the plaintiff is that the defendant has neither paid nor tendered the rent of the suit premises w.e.f. 01.01.2012. Accordingly the plaintiff terminated the tenancy of the defendant vide legal notice dated 16.07.2012 (posted on 21.07.2012). The plaintiff claims that after termination of the 2 of 16 tenancy, the defendant is an unauthorised occupant/ trespasser in the suit premises.
4. The plaintiff has therefore claimed a decree for recovery of possession of the suit premises. The plaintiff has further claimed recovery of arrears of rent of Rs.13,500/= with pendentelite and future interest @24% p.a The plaintiff further claims damages/ mesne profits @ 6,000/ per month from the date of termination of tenancy till the handing over of vacant possession of the suit premises to the plaintiff. The plaintiff has further claimed a decree of permanent injunction restraining the defendant from sub letting, selling, alienating, creating any third party interest or from raising any unauthorised construction in the suit premises.
5. The defendant appeared pursuant to service of summons and filed his written statement. The defendant pleaded that the suit property is situated in Village Palam and Village Palam has been urbanized and as per [SECTION] of the [ACT], the suit property is governed by the provisions of the [ACT] as the rent is less than Rs. 3,500/ per month. The defendant claimed that he is protected under the [ACT] and the suit is liable to be dismissed on this count. .It is further stated that present case is not filed with clean hands.
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6. The defendant admitted that he is tenant in respect of the suit premises under the plaintiff society. The defendant averred that the rent of the shop is Rs. 1,350/ per month and the same was duly paid. The defendant further pleaded that the plaintiff society abruptly increased the rent of the shop in question to Rs.1,500/ per month in January 2012 and the defendant protested against the same. Thereafter the rent was tendered to the plaintiff by money order ,however the plaintiff refused to accept the rent.
7. The defendant further averred that the suit has not been properly instituted on behalf of plaintiff society. The defendant denied the receipt of legal notice. The defendant however averred that the legal notice was received from Dada Dev Mandir Prabandhak Committee whereas the plaintiff society is registered as Dada Dev Mandir Prabandhak Sabha.
8. The defendant further averred that he is a lawful tenant in the suit premises. The defendant denied his liability to vacate the suit premises or to pay arrears of rent or damages/ mesne profits. The defendant prayed for dismissal of the suit.
9. The plaintiff moved an application under [SECTION] [ACT]. The plaintiff contended that the defendant has admitted the relationship of landlord and tenant. That property in question does 4 of 16 not fall within the ambit of [ACT]. Therefore the suit qua the relief of possession is liable to be decreed in terms of [SECTION] [ACT]. The plaintiff prayed that the suit be partly decreed qua the relief of recovery of possession in terms of [SECTION] [ACT].
10. No reply to the said Application was filed on behalf of the defendant.
11. I have heard the learned counsel for the plaintiff and the learned counsel for the defendant and have carefully gone through the record.
12. The plaintiff has averred that the suit premises is situated at Village Palam and this fact is not disputed by the defendant also.
13. It is seen that the defendant has claimed in his written statement that Village Palam has been urbanized vide notification dated 24.10.1994 issued under [SECTION] of the [ACT] and has pleaded that the provisions of the [ACT] apply to 'Palam area' by virtue of the [SECTION] to the [ACT].
14. Now the [SECTION] to the [ACT] provides that the Act applies to urban areas within the limits of the Municipal Corporation of Delhi which were already urban areas on the date of commencement of the [ACT] i.e. 9th February, 1959.
15. It is the admitted case of the defendant that Village Palam was subsequently urbanized vide notification dated 24.10.1994 issued under [SECTION] of the [ACT]. Thus it is clear that on the date of commencement of the [ACT], Village Palam was not an urbanized area and hence the [SECTION] to the [ACT] can have no application to determine the applicability of the [ACT] to Palam area.
16. It is no longer res integra that a separate specific notification under the proviso to [SECTION] of the [ACT] has to be issued, apart from an urbanization notification under [SECTION] of the [ACT] for the applicability of the [ACT] to a particular area which is subsequently urbanized. Reference may be made to the judgment of the Hon'ble Supreme Court titled as [PRECEDENT].
17. The defendant has not placed on record any notification 6 of 16 issued under the proviso to [SECTION] of the [ACT] thereby extending the provisions of the [ACT] to Palam area. In fact the defendant has not even pleaded that any such notification has been issued under the proviso to [SECTION] of the [ACT]. Thus no question of leading any evidence in respect of any such notification arises. Thus there is an implied admission on the part of the defendant and that there is no such notification.
18. Further more a notification issued under the proviso to [SECTION] of the [ACT] is obviously issued by the Central Government by virtue of the power delegated by a principal legislation and hence the Court can always take judicial notice of such a notification. Reference may be made to the judgment titled as [PRECEDENT].
19. Once the Court can take judicial notice of such a notification, no evidence is required for proving such a notification and it is sufficient that a copy of notification is placed on record. In the present case neither the existence of any such notification under the [ACT] has been pleaded nor a copy of the same has been placed on record nor it has been stated by the 7 of 16 counsel for the defendant during the course of arguments that any such notification exits. The matter in the present case therefore does not require any evidence to be adduced.
20. The Hon'ble High Court of Delhi has already held that the provisions of the [ACT] are not applicable to the area of Palam. Reference may be made to the judgment titled as '[PRECEDENT]. In fact in [CASE NUMBER] titled as '[PRECEDENT]' the Hon'ble Division Bench of the High Court of Delhi vide order dated 29.07.2003 declined to issue a writ of Mandamus directing the Central Government to issue a notification extending the provisions of the [ACT] to the Revenue Estate of Village Palam.
21. Again in the year 2006 in [CASE NUMBER] titled as [PRECEDENT] the Hon'ble High Court of Delhi vide order dated 02.11.2006 has categorically held that the provisions of the [ACT] are not applicable to the area of Palam.
22. It is therefore absolutely clear that the provisions of the [ACT] are not applicable to Palam area and no evidence is required to establish this fact.
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23. [SECTION] of the [ACT] provides as under : "6. Judgment on admission. (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or given such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under [SECTION] a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
24. In the judgment titled as "[PRECEDENT] the Hon'ble Supreme Court held:
" In fact, [SECTION], [ACT] is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. In the present case, looking at the terms of lease deed, there can be no two opinions 9 of 16 that the tenancy was joint /composite and not individual one. Therefore, on these admitted facts the view taken by learned single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of [PRECEDENT]. Their Lordships have held as follows:
"In the Objects and Reasons set out while amending [SECTION], [ACT] it is stated that 'where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable to the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." "
25. Adverting to the facts of the present case the defendant has admitted that he is a tenant in respect of the suit premises under the plaintiff.
26. The defendant has contended that the suit has not been properly instituted. However a copy of the resolution of the plaintiff society has been placed on record whereby Sh. [ENTITY], President of plaintiff society, has been authorized for the purpose of court cases in respect of the Temple property. Moreover as per 10 of 16 [SECTION] of the [ACT] a society may sue in the name of its President. The suit has been instituted by Sh. [ENTITY], President and AR of the plaintiff society. Therefore I do not find any substance in the contention of the defendant that the suit has not been property instituted.
27. Further legal notice in terms of [SECTION] of the [ACT] was issued to the defendant. But the defendant has denied the receipt of the said notice by the plaintiff .The defendant has however contended that the legal notice was issued on behalf of Dada Dev Mandir Prabandhak Committee, Bara Gaon, Palam, whereas the plaintiff society is Dada Dev Mandir Prabandhak Sabha. That hardly makes any difference and the said mistake appears on account of the fact that the word "Sabha" has been attempted to be translated into English language. On perusal of the material on record there is not even an iota of doubt that the legal notice was issued on behalf of the plaintiff society only.
28. It has been clearly stated in the legal notice that the tenancy of the defendant has been terminated and the defendant has been called upon to hand over the vacant possession of the suit premises. The tenancy of the defendant therefore stood terminated 11 of 16 on expiry of a period of 15 days from the date of receipt of legal notice.
29. Further more even if there was any doubt with respect to the fact that the legal notice was issued on behalf of the plaintiff society only, the same stood dispelled on service of the summons in the present case after institution of the present suit. A copy of the legal notice was clearly served on the defendant at the time of service of summons in the present suit. In fact the plaint itself can be treated as notice to quit and filing of a suit to recover possession amounts to termination of tenancy.
30. The Hon'ble High Court of Delhi in the judgment titled as [PRECEDENT] has held that :
" 7 (ii). The Supreme Court in the case of [ENTITY] Investments (P) Ltd. Vs. Santokh Singh (HUF), 146 (2008) DLT 217 (SC)=1 (2008) SLT 195=2008 (2) SCC 728 has held that the tenancy would stand terminated under the general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of [ENTITY] (Supra) I hold that even assuming the notice termination tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit 12 of 16 against the appellant/defendant (iv) Once the summons in the suit along with documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended [SECTION] in view, the appellant therefore, cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under [SECTION], [ACT], and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice along with documents in the suit, I hold that the tenancy has been validly terminated, and as on date, he appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court.
8. Therefore, looking at it from any point i.e. the fact that legal notice termination tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice along with documents was duly served to the appellant/tenant way back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the appellant/tenant is liable to hand over the possession of the tenanted premises "
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31. Thus the tenancy of the defendant therefore stood terminated at any rate on expiry of a period of 15 days after service of summons in the present suit. The result is that in any case on the date of filing of WS the tenancy of the defendant stood terminated.
32. However I have already held that the legal notice was a valid notice and the tenancy stood terminated on expiry of a period of 15 days from the date of receipt of legal notice.
33. I have already held that the provisions of the [ACT] are not applicable to the area of Palam where the suit premises is situated. The defendant is therefore not protected under the [ACT].
34. 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. The plaintiff is thus entitled to decree for recovery of possession in terms of [SECTION] [ACT]. Reference may also be made to the judgments titled as [PRECEDENT] and [PRECEDENT].
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35. The defendant is a tenant in the suit premises whose tenancy has been determined. I have already held that the defendant is liable to vacate the suit premises. Thus the defendant has no right to sell, transfer, alienate or create any third party interest or raise any construction in the suit premises. This fact is not specifically denied and is therefore deemed to have been admitted by the defendant. Accordingly, the plaintiff is also entitled to a decree of permanent injunction restraining the defendant from creating any third party interest in the suit premises and from raising any unauthorized construction or making any structural alterations in the suit premises.
36. The plaintiff is therefore entitled to a decree of recovery of possession and permanent injunction in respect of the suit premises and the suit deserves to be partly decreed. Accordingly the application under [SECTION] [ACT] is allowed.
RELIEF
37. A decree of possession is passed in favour of the plaintiff and against the defendant, thereby directing the defendant to hand over the vacant possession of the suit premises i.e. Shop No. 20, Dada Dev Mandir Prabhandak Sabha (Barah Gaon), Palam, 15 of 16 New Delhi, to the plaintiff.
38. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant thereby restraining the defendant from creating any third party interest in the suit premises and from raising any unauthorized construction or making any structural alterations in the suit premises.
39. The suit is partly decreed in favour of the plaintiff and against the defendant in these terms under [SECTION] [ACT]. Costs shall be determined at the time of final disposal of the entire suit.
Announced in the open court ([ENTITY]) on 19/08/2013 Civil JudgeI/Dwarka Courts Delhi/19.08.2013 16 of 16