Gursharan Kaur vs H.B. Singh
1999 Latest Caselaw 132 Del

JUDGMENT

S.N. Kapoor, J.

1. The plaintiff, Smt. Gursharan Kaur claims to be the owner of the suit premises No. R264, Greater KailashI, New Delhi comprised of entire first floor of 208 sq. yds. of land in posh colony of Greater Kailash. This property was purchased by virtue of Sale Deed dated 21st July, 1966 and registered on the same date. Plaintiff No. 2 her husband was managing the property.

2.1. It is claimed that the defendant being partner of the husband of Smt. Gursharan Kaur was inducted in the premises as licensee on account of friendly relations. However, the defendant refused to vacate the premises. He was called upon to vacate and to pay the licencefee on the basis of prevailing market rate which was not less than Rs.10,000/ per month for the period of three years prior of filing of the suit. On failure of the defendant to vacate despite notice, the suit has been filed for the recov ery and possession of first floor of the premises. The plaintiff claims that the defendant is admittedly in occupation and using the suit premises without paying any licence fee to plaintiff No.1. The plaintiff No.1 is widow and her husband died on 10.1.1993. The defendant has delayed in filing the written statement by over five years.

2.2. The plaintiff moved the above mentioned I.A. No. 1402/97 seeking the following prayer:

(1) To pay to or deposit with plaintiff No. 1 a sum of Rs. 3,60,000/ towards the use and occupation charges at the rate of Rs.10,000/ per month, that is for the period of 3 years prior of filing of the suit;

(2) To deposit or pay to plaintiff No. 1 a sum of Rs. 5,70,000/ towards occupation charges of the suit premises for the period from 1st May, 1992 to 31st Jan., 1997 that is, at the rate of Rs. 10,000/;

(3) To deposit or to pay to plaintiff No.1, month by month, by 7th of each succeeding month a sum of Rs. 10,000/ per month with effect from 1st Feb., 1997.

3. The defendant is contesting the suit and the application. In para 1 of the Preliminary Submissions in Written Statement, it is claimed "That the plaintiffs are not the owners of the property No. R264, Greater Kailash PartI, New Delhi110048" for no documents showing the claim of the plain tiffs to be the owner/landlord of the demised premises has been filed in the suit. In para 2, however, it is claimed that the demised premises were given on rent on 1st May, 1980 to the defendant at a monthly rent of Rs. 300/ by the plaintiff No.1. The rent still remains the same. However, it is denied that the plaintiff is entitled to mesne profit @ Rs. 10,000/ per month. The present suit for possession is not maintainable in view of bar under Section 50 of Delhi Rent Control Act, 1958, the rent being paid Rs. 300/ per month. The rent of the demised premises has been attached by the MCD under Section 162(2) of the DMC Act vide order dated 29.5.1982 passed by the Asstt. Assessor & Controller (Recovery), Central Recovery Cell1 and subsequent orders. Accordingly, the defendant has been depositing the rent of Rs. 300/ per month with the MCD and the rent upto January, 1997 stands deposited. The defendant has not held any money or thing as trustee of the plaintiffs and no amount is due from the defendant to the plaintiffs by way of rents or otherwise. It is also claimed that after the death of plaintiff No. 2 on 10.1.1993 the suit stands abated. The present application is an attempt to get the use and occupation charges determined without the par ties going through trial which is impermissible under the law. The parties have a vested right to lead evidence on their respective issue. In case plaintiff was allowed to maintain the present application i.e. under Order 39, Rule 10, it would amount to a piecemeal trial and the defendant would be put to extreme prejudice in the trial as a result. It would amount the prejudging the matter hence this application I.A. No. 1402/97 is liable to be dismissed. The application under Order 39, Rule 10 was not maintainable for the reason that there has been bona fide relationship. In order to support these contentions, I.A. No. 2047/98 under Order 7, Rule 11 read with Section 151, CPC for dismissing IA No. 6402/97 was filed taking simi lar pleas. Additional plea is that the application is not maintainable after framing of the issues.

4. From the rejoinder it appears that against the order passed by this Court to file affidavit evidence FAO (OS) No. 58/97 was filed by the de fendant but the same was dismissed by the Division Bench. It has also been alleged that the pleas taken are totally baseless, bogus, frivolous and mala fide.

5. I have heard the learned Counsel and gone through the documents and affidavits for the parties as the parties have filed affidavits in support of their contention.

6. It is an admitted fact that there was a partnership between the de fendant Mr. H.B. Singh and the husband of plaintiff No. 2 as per para 6 of the written statement. The defendant inducted the plaintiff No. 2 to enter into a partnership with little or no experience in the construction activi ty. And it is also admitted that construction of some of the school build ing was started in Libya. According to defendant, the plaintiff No. 2 himself suggested that defendant should shift to the premises in suit for its was lying vacant in 1980. The rent was agreed to at Rs. 300/ per month. It is denied that the plaintiff husband was ever approached to permit him to use the suit property as a licensee for the alleged reasons. Thus the defendant claims to be a tenant @ 300/ per month w.e.f. 1.5.1980.

7.1. According to the affidavit filed by the plaintiff the first floor of the building bearing No. R265A, Greater Kailash Extention, New Delhi was let out by the owner thereof Shri M.L. Tandon to M/s. Jagatjit Cotton Textile Mills Ltd. on 1.6.1980 at a monthly rent of Rs. 1,300/ per month inclusive of Rs. 350/ towards hire charges for fixtures and fittings. These premises were exactly similar to the suit premises, in respect of size, location on the first floor having fixtures and fittings etc. in the same block. The rent of these premises was increased w.e.f. 1.5.1982 to Rs. 1,550.50 per month and w.e.f. 1.5.1994 to Rs. 1,750/. (See Annexures A, A 1 and A2). The said very premises were let out in 1988 to M/s British Health Products (I) Ltd. @ Rs. 4,000/ per month vide Annexure A3. These premises were again let out to American Express Bank w.e.f. 15th June, 1990 at the rate of Rs. 5,000/ per month vide Annexure A4.

7.2. The second instance, as per affidavit of the plaintiff, relates to the ground floor of H.No. 256, Greater KailashI, New Delhi having exactly similar premises in the same block. Mr. O.N Chibber, owner of the property enhanced the rent from Rs. 900/ per month to Rs. 1,100/ per month w.e.f. 1.3.1980 to M/s. Bharat Heavy Electrical Ltd. vide letters dated 29.4.1980 and 8.5.1980 (Annexures B and B1).

7.3. Smt. Sinha owner of the property No. R269, Greater KailashI, New Delhi let out similar first floor of her said building located near the same block to Shri Harsh Narain Tewari who was paying rent of Rs. 1,300/ per month of rent in 1980.

7.4. In 4th instance the Barsati floor comprising of just one room along with a temporary toilet of property No. R264, Greater KailashI, New Delhi was let out to Mr. Arun Bhaskar at the rate of Rs. 400/ per month in 1980 81.

7.5. On the basis of these four instances, it is claimed that the rent of the suit premises was not less than Rs. 1,300/ per month and at present the rent of the same is not less than Rs. 15,000/ to 20,000/ per month.

8.1. In para 9 of the written statement it was claimed that the rent was Rs. 300/ only for the property immediately was not usable. It is also claimed that the defendant spent Rs. 60,000/ on maintenance and Rs. one lakh on getting it white washed, painted and repaired. The defendant has also allegedly spent Rs. 25,000/ to repair and replace the wooden cup boards. The defendant has even deposited rent @ Rs. 300/ per month with the Tax Recovery, Municipal Corporation of Delhi on account of attachment. It is not claimed by the defendant that any rent receipt or any rent agree ment was ever executed to indicate that the premises of the plaintiff was let out to him @ Rs. 300/ per month. There is no doubt that there could be an oral tenancy. It is not claimed that there was any agreement with plain tiff No. 2 to allow the defendant to spend any money, leave aside the huge sums allegedly spent in making the same usable. But in affidavit this case has been developed.

8.2. The defendant has filed three notices under Section 162(2) of DMC Act dated 4th September, 1982, 9th January, 1986 and 29th May, 1992 and few receipts indicating attachment of the rent which he deposited @ Rs. 300/ per month. In this regard it is notable that there is no notice of attach ment after 1992 to deposit any attached rent. The fact that he is continuously doing so again does not show his bona fide excepting an intention to harass the plaintiff by nonpayment of even alleged rent of Rs. 300/.

8.2.1. In this regard before proceeding further, it would be useful to quote observation of the Privy Council in Alluri Venkatapathi Raju & Anr. Vs. Dantuluri Venkatanarasimha Raju & Ors., AIR 1936 PC 264. It reads as under :

"It sometimes happens that persons make statement which serve their purpose, or proceed upon ignorance of the true position; and it is their statements, but their relations with the estate, which should be taken into consideration in determining the issue."

8.2.2. The above observations have been followed and applied by Subba Rao, J. (as he then was) in Rukhmabai Vs. Lala Laxminarayan & Others, .

8.2.3. These observations have been quoted again with approval in Suren der Kumar Jain Vs. Royce Pereira, . In that case also the respondent informed the Corporation in tax proceedings that he was paying rent of Rs. 200/ per month. It was observed that the said statement even if true, stood rebutted by appellant's letter dated 31st May, 1974 admitting that he was in possession as a 'paying guest'. In the case in hand, apart from payment of house tax and self serving statement, the claim of the defendant inconsistent with the facts and circumstances.

8.2.4. In Suraj Prakash & Ors. Vs. Union of India, also a similar question of payment of house tax was considered and it was held that simple occupation of property alone would not lead to a conclusion that such a person was tenant or a licensee on the basis of occupation. In that case also not even a tiny piece of paper was produced, except payments towards house tax by the tenant to indicate that they were tenants under the respondent in absence of rent receipt, rent notices, lease deed, excepting payment of house tax. A Single Judge of this Court rejected similar contention. It was also observed that payment of house tax could by no stretch of imagination be equivalent to an agreement of tenancy. House tax is levied on a person whosoever is in possession/occupation over a particular property. No inquiry with regard to the status of the person is conducted at the time of the levy of the house tax. The Municipal Corporation is concerned with the recovery of the house tax from any person whosoever is in occupation over a particular property.

9.1. The defendant in his affidavit contends that the rate of rent in the year 1980 of the similar premises as that of suit premises was Rs. 300/ per month and in support of his contention, he filed a photocopy of the lease deed dated 4th October, 1980 whereby premises No. B65, defense Colony were let out on 4th October, 1980 comprising of the entire ground floor and one servant quarter with bath on the first floor was let out on monthly rent of Rs. 1,000/. The premises were comprised of one drawingcumdining room, three bathrooms, garage and backyard on the ground floor. These are not similar premises. The property bearing No. B65, defense Colony is not similar premises. The affidavit also refers to a statement of Mr. Amardeep Singh who is said to be the son of the plaintiff indicating that "FF and BF is occupied by the old tenants and ground floor is occupied by the sister and she is not paying any rent." This statement was recorded on 22nd June, 1993. Firstly, it is not admission of the plain tiff; secondly, the suit had already been filed on 25th April, 1992 and the defendants were claiming to be tenant. As such, this could not be an admis sion on the part of the plaintiff that the defendant was tenant just on the basis of the statement of her son in house tax proceedings.

9.2. Consequently, deposit of house tax could not be treated at all as a payment of rent. Moreover, the defendant admits that he was inducted by the plaintiff in the premises in question. The plaintiff has filed a sale deed. It is not the case of the defendant that anybody else is the owner of the property. As such, the ownership of the plaintiff No. 1 is prima facie established.

9.3. For the forgoing reasons, seeing the extent of the premises, location and area, prime facie, the plea of the defendant that the premises were let out @ Rs. 300/ per month in 1980 appears to be altogether sham. On his own showing and comparing with defense Colony premises, the premises could not be let out at any rate below Rs. 1,000/ per month in the year 1980.

10.1. Now, the question relating to the jurisdiction of this Court is required to be seen in the light of the objection relating to jurisdiction and prejudging the issues. So far as the question of jurisdiction is concerned, the learned Counsel for the plaintiff relies upon Jai Rani Puri and Another Vs. Shri Vinod Kumar Puri and Others, in support of his contention. A Single Judge of this Court observed that an order under Section 151, CPC could be passed in appropri ate cases granting interim relief by way of maintenance during the pendency of a partition suit.

10.2. In this very connection he also relies upon Jasbir Singh Katari Vs. Kewal Raj Sadhna, 1995 II AD (Delhi) 163. In that case, a Single Judge of this Court directed the defendant to pay damages at the rate of Rs. 25,000/ per month in an application Order 39, Rules 1 & 2 read with Sec tion 151, CPC.

10.3. In Reeaa Hotel and Restaurants (P) Ltd. Vs. Anusri Enterprises, , a similar application under Order 39, Rules 1 & 2 and 10 was allowed finding absolutely no justification and directions were issued to the defendants to pay a sum of Rs. 17,55,000/ for the period from 14th November, 1994 up to 30.6.1996 and further direct ed him to pay @ Rs. 90,000/ per month to the plaintiff. It was also ordered that if the amount was not paid by the plaintiff the defense of the defendant should stand struck off.

10.4. In Sukhanand Vs. Additional District Judge, Bulandshahr & Anr., was also relied upon by the learned Counsel for the plaintiff it was held that it was the burden of the tenant to prove payment of rent and it was not discharged.

10.5. In M/s. G.M. Modi Hospital & Research Centre Vs. Sh. Shankar Singh Bhandari and Others, 1995 I AD (Delhi) 1069=58 (1995) DLT 79 injunc tion was vacated where the plaintiffs who claimed to be lessee of the premises failed to establish prima facie that they had acquired any right to be in possession (occupation).

10.6. Though, there cannot be a dispute with the proposition that in case a party wants to crossexamine the person who has filed the affidavit, crossexamination should be allowed for such an affidavit in an ordinary course may not be sufficient to form a basis of final decision to pass a decree, yet such a proposition cannot be accepted in respect of interim orders. If this proposition is accepted then the question of recording of evidence would arise in disposing of every injunction application or appli cation misc. application like the present. As such the judgment of the Rajasthan High Court in Jagdish Vs. Premlata Rai, not of any help to the defendant.

10.7. The learned Counsel for the respondent has referred to Kanti Singh & Ors. Vs. Project & Equipment Corporation of India Ltd., but this judgment relied upon by the learned Counsel for the defendant related to Order 12, Rule 6 where a final decree was sought to be passed on the basis of a Division Bench judgment. No such decree is being passed in the case in hand.

10.8. In this very connection Smt. Alexandreta Maria Crispina de Aguiare Mendes, of Chinchinim Salcete Vs. Sham Role Naik and Another, AIR 1980 NOC 106 (Goa) is also relied upon by the learned Counsel for the defendant. This case itself suggests that the proceedings under Order 39, Rule 1 are essentially summary and the Court concerned with them should not go into protracted procedure. Even though power is given to the Court to allow crossexamination of the affidavit witnesses that power should be used very sparingly, in case the Court finds after reading the affidavits and the documents on record that no conclusion could be arrived at. Here in this case on the basis of instance of defense Colony shown by the defendant himself the rate of rent could not be Rs. 300/ by any stretch of imagina tion. Therefore, this judgment is also of no help to the defendant.

10.9. In Sakalabhaktula Vykunta Rao and Others Vs. Made Appalaswamy, also the Andhra Pradesh High Court followed the above principle in respect of disposal of the application under Order 39, Rule 1 on the ground that the scope of inquiries is quite limited and the rights of the parties was not being decided finally. Consequently the question of summoning the deponents of the affidavits filed for the purpose of cross examination does not arise. Consequently, it is felt that there is no substance in this submission made by the learned Counsel for the defendant.

10.10. The learned Counsel for the defendant in this regard also relied upon Smt. Sulkhana Malhana and Others Vs. Shashi Kapoor & Anr., 1981 DRJ 282. That case related to treating a particular issue as preliminary issue. Here that is not the point in issue.

10.11. He also relied upon Bhagwant Singh & Anr. Vs. Mohan Lal & Anr., . That case was decided on its own fact for in that case there was evidence mentioned in para 21 amounting to admission and there fore that case is also of no help.

10.12. The learned Counsel for the respondent has also relied upon in Nitco Roadways Pvt. Ltd. Vs. The National Insurance Co. and Others, that was a case which was decided finally on the basis of a preliminary issue. This is just a disposal of an interim application under Order 39, Rule 10. Therefore this case also does not help the defendant.

11. In so far as the contention that it amounts to prejudging the issue is concerned, the matter is required to be seen and examined only for the purpose of taking a prima facie view of the matter for it can certainly not be decided finally at this stage. This is essential in order to avoid any unnecessary hardship on one hand and to stop the abuse of the process of the Court on the other. Otherwise, the very purpose of Order 39 itself is likely to be frustrated. Such a point could be tentatively decided on the basis of affidavit evidence. This Court cannot be a silent spectator to see the abuse denying a widow even minimum return out of the property. Consequently I reject the contention that this Court has no jurisdiction to entertain this application at this stage and it amounts to prejudging the matter. The contention is rejected accordingly.

12. Insofar as question of abatement of suit on account of death of plain tiff No. 2 the deceased husband of plaintiff No. 1 is concerned, plaintiff No. 1 is exclusive owner of the property in dispute and her husband was just managing the property. Moreover, plaintiff No. 1 is widow of the deceased plaintiff No. 2 and thus represents the estate of the deceased plaintiff No. 2.

13. While it does not appear appropriate to grant any interim relief in respect of damages claimed for occupation relating to period prior to the institution of the suit, it is desirable that interim relief should and may be given in respect of period from the date of service of notice or date of institution of the suit. It is evident that the similar premises were let out on 15th June, 1990 at the rate of Rs. 5,000/ per month to the American Express Bank'. As such, the premises could not be let out in the year 1992 at the rate below Rs. 5,000/ per month. By the year 1994, the rates of rent started shooting up and the premises could not have been let out or could not be available on any rent less than Rs. 7,500/ w.e.f. 1.1.1995.

14. It appears therefore evident that the plaintiff have got a prima facie case. Non payment of any amount amounts or to deprivation of the minimum return of the property. Seeing that point it appears that the balance of convenience is in favour of the plaintiff. This may amount to irreparable loss also to nonworking widow who has no other means of subsistence and maintenance while the defendant is admittedly using and occupying the suit premises without making any payment.

15. Accordingly for the aforesaid reasons the Application No. 1402/97 of the plaintiff is to be allowed. For these very reasons there does not appear any force in the Application No. 2427/98 moved by the defendant to reject/dismiss the Application No. 1402/97.

16. The defendant is accordingly directed to deposit mesne profit for use and occupation at the rate of Rs. 5,000/ per month w.e.f. 1.5.1992 to 31.12.1994 and w.e.f. 1.1.1995 at the rate of Rs. 7,500/ per month. The defendant shall further continue to deposit the amount every month from the date of this order till further orders. The defendant shall deposit all the arrears accordingly within one month failing which his defense shall stand struck off. On deposit of the amount the plaintiff shall be entitled to receive the amount on filing security to the satisfaction of the Registrar of this Court.

17. However, it is made clear that the above observation shall not adversely affect either of the parties in any manner so far as the final disposal of the matter is concerned for these observations are confined to the disposal of these two applications I.As. 1402/97 and 2427/97. Both the applications are disposed of accordingly.

18. The matter be listed before the concerned Bench as per roster on 5th April 1999.