Mrs. Sarla Ahuja And Anr. vs Mr. Kundan Lal
2003 Latest Caselaw 289 Del

JUDGMENT

S. Mukerjee, J.

1. This is a suit for possession filed by the plaintiff against the defendant for recovery of the suit premises 2372-C, Shadi Khampur, Mandirwali Gali, near Gurudwara, New Delhi-8 Along with certain moveable properties including one refrigerator, three ceiling fans and other electrical fixtures and household furniture. There is also a claim for mesne profits/damages w.e.f. 1.5.98 and up to the date of actual handing over of the possession by the defendant to the plaintiffs.

2. Plaintiff No. 1 is the owner of the suit premises. Plaintiff No. 2 is a partnership firm of which Plaintiff No. 1 is one of the partners.

3. The defendant was an employee of plaintiff No. 2 firm, and as such was the known to the plaintiff No. 1. The defendant is stated to have worked with the plaintiff in various capacities, and lastly in a managerial and administrative capacity drawing a monthly salary of Rs. 8,500/-.

4. The case of the plaintiffs is that the defendant was looking for residential accommodation, and in these circumstances, a mere license was granted in favor of the defendant, to use the suit premises with the moveable property referred to in para 1 above, for the residential purposes of himself and his immediate family.

5. A license deed dated 1.11.94 was executed between the plaintiff No. 2 and the defendant, wherein it was stipulated that the residential accommodation has been provided for a limited period of duration of his service with the plaintiff No. 2.

6. Clauses 10 & 11 of the said License deed is stipulated under:-

"10. That the Licensee shall be entitled to reside in the schedule premised during the period of his employment in the firm. The period of license shall be co-terminus with the tenure of employment of the Licensor firm. However, the Licensor reserves the right of requisitioning/termination of this license at any time.

11. That on the service of the Licensee being terminated and/or on the requisitioning of accommodation by the licensor, the Licensee shall forthwith vacate the schedule premises and hand over the peaceful possession to the Licensor."

7. The plaintiffs submit that the relationship was that of a mere licensee having only permissive user and no rent or similar charges were either claimed from him, or were being paid by him.

8. It is the further case of the plaintiffs that the defendant unauthorisedly and without any intimation suddenly stopped reporting for duties w.e.f. 15.10.97.

9. Despite repeated reminders the defendant did not resume his duties, nor did he furnish any explanation for his said continuous and unauthorised absence.

10. It is the case of the plaintiffs, that after following required legal procedure, and based upon the report of the Inquiry Officer appointed in this behalf, the services of the defendant was terminated w.e.f. 30.4.98.

11. The defendant was then called upon to hand-back the peaceful and vacant possession of the suit premises.

12. Instead of complying with the said request, the defendant reportedly demanded an exorbitant amount of money for vacating the suit premises.

13. There was some further exchange of correspondence between the parties. Thereafter the defendant is alleged to have filed a false complaint with the Conciliation Officer of the Labour Department claiming that his termination was not proper, in respect of which certain proceedings by way of writ petition are stated to be pending on the Extraordinary side of this Court.

14. The plaintiffs submits that the defendant is in illegal and wrongful possession of the suit premises, and therefore the plaintiff is entitled to the relief of possession as also to the relief of mesne profits/damages @ Rs. 7,500/- per month from 13.4.1998 to 30.9.99 and thereafter @ Rs. 10,000/- per month till the date of handing over of vacant and peaceful possession back to the plaintiff.

15. The defendant was duly served. After pleadings were completed, the following issues were framed:-

1. Whether the suit filed by the plaintiffs is without any cause of action as stated in the preliminary objection No. 1? OPD

2. Whether the suit has been properly valued for the purpose of Court fee and jurisdiction? OPP

3. Whether the plaintiffs are entitled to decree of eviction and/or ejectment in respect of suit premises? OPP

4. Whether the plaintiffs are entitled to mesne profits/damages w.e.f. 1st May, 1998? If so, at what rate? OPP

5. Relief.

16. Thereafter, on 14.12.2001, the following additional issue No. 3A was also framed:-

"3-A: Whether the license deed dated 1st November, 1994 is forged and fabricated as alleged in paragraph 6 of the written statement? OPD"

17. The plaintiff adduced evidence in the form of 5 witnesses, whose affidavits by way of examination-in-chief were duly filed, and they were also cross-examined by the defendant.

18. Thereafter, when the matter came up for defendant's evidence, despite grant of a number of opportunities, from 9th October, 2002 onwards, no witness was produced, nor did the defendant even present himself for cross-examination after filing his examination-in-chief by way of affidavit.

19. During this period, the matter was listed repeatedly and on most of those dates, no one was even present on behalf of the defendant.

20. On 27.11.2002, the matter was directed to be listed before the Court for default of the defendant. On the said date, this Court granted last opportunity to defendant to adduce evidence before Shri S.S. Handa, Joint Registrar on next date fixed which was 6.1.2003.

21. However, the defendant did not adduce his evidence even on 6.1.2003. The matter was then again sent to Court on 24.1.2003, on which date also neither defendant nor any witness on his behalf was present in the Court.

22. Thereafter, the matter was listed for disposal in the category of finals. On 13.3.2001 also, no one was present on behalf of the defendant to even argue his case.

23. The arguments of the plaintiff were heard. The plaintiff has also filed written synopsis. On the basis of the pleadings of the plaintiff and the unrebutted evidence which has come on record, it stands established that the relationship between the parties was in the nature of a license governed by the license deed which is Exh. PW 4/1.

24. The plaintiff has also established on record by way of exhibits P13, P14 and P15 respectively, that notices relating to enquiry proceedings, were duly tendered to the defendant who willfully refused to accept the same. The Enquiry Report has also been received by the defendant, and the letter for the same have both been exhibited as Exh. P16 & P17 respectively.

25. It has also come on record that though the defendant has challenged his termination, but there is no verdict of any competent Court till date holding defendant's termination to be legal.

26. The plaintiff has duly proved the legal notice dated 28.7.98 and 3.7.99 duly served upon the defendant, which are Exhibits P7 & P-9 respectively, while the related A/D cards, are Exhibits P8 & P10 respectively.

27. The defendant has replied to both these legal notices and the replies are Exhibits P11 & P12.

28. In the said reply sent to the legal notices, the defendant has taken the stand that the license deed are neither stamped nor registered and therefore cannot be located into in evidence. As such, it follows that the defendant has in a sense admitted the execution of the documents between him and the plaintiff No. 2. In any case no evidence at all has been led by him to the contrary.

29. The findings on the issues framed are as under:-

Issue No. 1:-

The defendant having failed to adduce any evidence at all and thereby also having thus failed to discharge the onus to proof that the suit was devoid of cause of action, as such this issue is decided against the defendant. Even otherwise, on the basis of the pleadings and the evidence adduced by the plaintiffs, there exists valid cause of action for instituting this suit.

Issue No. 2:-

The Ld. Counsel of the plaintiff has relied upon the provision of Section 7(v)(e) of the Court Fee Act, 1970 and the decision of this Court in Ashok Chaudhry Vs Dr. (Mrs.) Inderjit Sandhu . No evidence or submission to the contrary has been put forward on behalf of the defendant. In these circumstances, this issue is decided in favor of the plaintiff and against the defendant.

Issue No. 3:-

The plaintiff No. 1 has established the right to claim possession as the recorded owner of the suit premises in terms of the exhibits P1 to P6. The defendant has, in his written statement also admitted that he was an employee of plaintiff No. 2 firm and that his services were thereafter terminated. The plaintiffs have brought on recorded plaintiffs' evidence (which is unrebutted by the defendant) to the effect that the defendant unauthorisedly stopped reporting for duties w.e.f. 5.10.97, and was terminated after due enquiry and after a gap of more than 6 months time. As such, there is considerable merit in the contention of the plaintiffs that both in terms of Clause 1 & 11 of the license deed dated 1.11.94, the defendant became clearly liable to vacate the premises, both in the context of requisition by the plaintiffs, and also as a consequence of his (defendant's) termination from the services.

30. The Ld. Counsel for the plaintiff has relied upon the judgment of the Division Bench of this Court in Ashok Chaudhry Vs. Dr. (Mrs.) Inderjit Sandhu where it was held that notwithstanding agreement being and same also not produced by the landlord, even after claiming that the same was in his possession, still even on the oral evidence proving that the premises had been given on license, on the termination of license, the licensee becomes liable to restore back possession and as such, the decree of possession granted by the Additional District was upheld by the Division Bench of this Court.

31. Reliance has also been placed by the Ld. Counsel for the plaintiff upon the judgment of the Division Bench of this Court in Ramapuri Vs Golden Plastic Industries reported as , where it was held that where the transactions in question constitute only a personal privilege, the relationship is only in the nature of license, and not lease.

32. In Shri Kedari Singh Vs. DCM Ltd. reported as 1996 Vol. V AD (Delhi) 518, Hon'ble Usha Mehra J has held that the allotment of quarter to an employee, was only in the nature of facility to discharge the duties as an employee, and therefore did not amount to a lease.

33. Reliance has also been placed on the judgment of the Supreme Court in Puran Singh Sahni Vs. S.B. Kriplani; and Dr. H.S. Rikhy Vs. NDMC ; .

34. All these contentions have unurebutted by the defendant.

35. The stand of the defendant in the pleadings, is that he is not liable to vacate the premises till the final outcome of the proceedings before the Labour Court. That contention is not only against the settled law, but also has not been even prima-facie established because not even a single document has been placed on record in the form of lease/rent agreement or any document to establish the nature of the relationship. Rather, the defendant himself has avoided to step into the witness box for submitting himself to cross-examination, and that avoidance is a factor which totally erodes the defense of the defendant, on the principle of "nill" evidence being produced by him.

36. It is pertinent to mention that at a highly belated stage, the defendant who perhaps wanted to keep the proceedings indefinitely pending, moved an application for seeking permission to produce a hand-writing expert and an application for the said purpose was made to permit the expert to take care of the photographs etc.

37. However, in the face of the defendant's avoidance to step in the witness box for cross-examination, the mere filing of application is of no avail at all.

38. Once the defendant has not even stepped in the witness box to face cross-examination, on the point of the real nature of his relationship viz-a-viz plaintiff No. 2, there is nothing which the evidence of the expert could have corroborated or could have resulted in a valid defense in favor of the defendant on this aspect.

39. Furthermore, the defendant has not produced any proof for payment of any amount by him in the form of rent or any other agreement governing the relationship between the parties. On the other hand, the plaintiff's witnesses have established the plaintiff's version, that nothing at all was being paid and that mere license or privilege had been extended to the defendant, on account of his employment with the plaintiff No. 2, which has since been terminated long back.

40. The Ld. Counsel of the plaintiff has also placed reliance on a number of decisions of the Supreme Court, for establishing that the defendant was himself at fault regarding his unauthorised absence resulting in the termination, including , but I did not propose to go into this aspect, as the same is not required for the proper disposal of the present case.

Issue No. 3 A:-

This additional issue was framed at the instance of the defendant later on and the onus of proof was placed on the defendant. The defendant has led no evidence at all on this aspect. Rather, by avoiding to himself, step in the witness box, the defendant has been responsible for even his affidavit by way of examination-in-chief, being eliminated from consideration. Moreover, in Para 6 of the Written Statement, there is a clear admission that the premises in question were allotted to the defendant, on account of his employment. Furthermore, while execution of the document was denied in bald terms, no pleadings to the effect that the said document was "forged" or "fabricated", was at all made. Rather, implicit in the contents of para No. 6 of the Written Statement, in the position that there is no clear cut stand on the part of the defendant about the allegedly forgery and/or alleged fabrication. It is well-settled that such averments have to be pleaded and proved with very very specific detailed material, which is totally absent in the present case.

41. Furthermore, it may be noted that while giving reply dated 15.10.99 sent by the defendant, in answer to the legal notice dated 22.9.99 of the plaintiff, the defendant had taken a stand to the effect that license deed has got no meaning as the same was neither stamped nor duly executed, and hence not admissible in evidence.

42. Thus, the bald stand belatedly taken by the defendant forged and fabricated character of the license deed, is not supported by any evidence at all, and otherwise also is a totally turn-around of defendant's earlier stand on this aspect. Moreover, the license deed has been duly proved by the depositions of PW-3, PW-4, PW-5 respectively. This issue is therefore answered against the defendant and in favor of the plaintiff.

Issue No. 4:-

The plaintiff has pleaded and led evidence to establish that Rs. 7500/- per month was the market rate of the premises up to 30.9.99, and thereafter the said market rate became Rs. 10,000/- per month. The suit premises are comprised of two bed rooms, kitchen, bath room on the Ground floor with all fittings and fixtures including one refrigerator, three ceiling fans, and also a room on the first floor.

43. I am satisfied that no enquiry is required to be ordered in terms of Order 20 Rule 12, and accept the pleadings and evidence regarding mesne profit for unauthorised occupancy beyond 13.4.98 at Rs. 7500/- till 30.9.99 and thereafter at Rs. 10,000/- per month till the date defendant restores the possession of the suit premises back to the plaintiff.

Issue No. 5:-

In view of the above, the plaintiffs are entitled to a decree of possession in respect of the suit premises bearing No. 2372-C, Shadi Khampur, Mandirwali gali, near Gurudwara, New Delhi-8. The defendant's services having been terminated and the license in favor of the defendant also have been stood terminated on that account, as well upon legal notice served by the plaintiffs to the defendant, the plaintiffs are entitled to mesne profits at Rs. 7500/- per month w.e.f. 1.5.98 and up to 30.4.99 and thereafter at Rs. 10,000/- per month w.e.f. 1.5.99 till the date the premises are handed back to the plaintiffs by the defendant. In case the mesne profits are paid within three months, no interest will be payable. Thereafter defendant will be liable to pay interest from due date i.e. 15th of each month at 12% per annum. The plaintiff will also be entitled to the costs of the proceedings with counsel's fee Rs.11,000/-

44. Suit is decreed. Decree sheet be drawn up accordingly.