Ganesh Dubey And Ors. vs Mrs. Preeti Chandra & Anr.
2011 Latest Caselaw 5691 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                       Judgment Pronounced on: 24.11.2011

+ CS(OS) 567/2005

GANESH DUBEY AND ORS.                 ..... Plaintiffs
              Through: Mr Shivsant Singh, Proxy
              Counsel
                      versus
MRS. PREETI CHANDRA & ANR.        ..... Defendants
              Through: Mr Shivinder Chopra, Adv.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                          No.

2. To be referred to the Reporter or not?                   No.

3. Whether the judgment should be reported                  No.
   in Digest?

V.K. JAIN, J. (ORAL)

1. In this case, issues were framed on 15th May, 2009

and the plaintiffs were directed to file their affidavit by way

of evidence within four weeks. No affidavit by way of

evidence has been filed till date. On 25th November, 2000,

the Joint Registrar noted that though the matter was listed

for the evidence of the plaintiffs, no witness had been

summoned. He granted one last opportunity to the

plaintiffs to file affidavit along with list of witnesses within

two weeks. That, however, was not done and when the

matter was again taken up by the Joint Registrar on 14 th

December, 2000, she found no sufficient cause to extend

further opportunity for the purpose and accordingly, closed

the evidence of the plaintiffs. When the mater came before

the Court on 24 th January, 2011, the plaintiffs were granted

one more opportunity by the Court to file affidavit by way of

evidence within two weeks, subject to payment of Rs

5,000/- as costs. It was directed that if the affidavit is not

filed within two weeks, the evidence of the plaintiffs shall

stand closed, without any further order. Even that

opportunity was not availed by the plaintiffs and the Joint

Registrar, therefore, vide order dated 13 th March, 2011

again placed the matter before the Court. On April, 29,

2011, the learned counsel for the plaintiffs stated that he

was not getting instructions from the plaintiffs and he

would like to discharge and file an appropriate application

in this regard within a week. That was also not done. On

18th August, 2011, the learned counsel for the plaintiffs

again took adjournment on the ground that he was not

getting instructions from the plaintiffs. On 21 st September,

2011, the learned counsel for the plaintiffs stated that he

had been contacted only a day earlier and since the

plaintiffs were interested in prosecuting the suit, he would

file an appropriate application within two weeks, seeking

permission to lead evidence of the plaintiffs. No such

application was, however, filed. When the matter was taken

up on 1st November, 2011, adjournment was sought on the

ground that the mother of Mr Arun Vohar, counsel for the

plaintiffs, was not well. When the matter was taken up on

09th November, 2011, again adjournment was sought on the

same ground. Since no application for seeking yet another

opportunity to lead evidence of the plaintiffs has been filed,

the evidence of the plaintiffs stands closed in terms of the

order dated 24th January, 2011.

2. This is a suit for recovery of Rs 32,17,363/-. The

case of the plaintiffs is that plaintiff No. 1 is the owner of

one half of basement of the aforesaid property, plaintiff No.

2 is the owner of one half of the basement of the aforesaid

property, whereas plaintiff No. 3 owns the remaining half

portion of the basement. The plaintiffs let out the ground

floor and basement to defendant No. 2 for a period of two

years, commencing from 1st July, 2001 and ending on 30th

June, 2003. The rent was fixed at Rs 36,000/- for the

ground floor and Rs 9,500/- each for two half portions of

the basement floor, thereby making a total rent of Rs

55,000/- per month in respect of the ground floor as well as

the basement. On expiry of the aforesaid lease agreements,

the plaintiffs entered into a fresh lease agreements dated

26th December, 2003 with defendant No. 1 Preeti Chandra.

The tenure of those fresh agreements was from 1 st July,

2003 to 30th June, 2004. It is alleged that the rent agreed

between the plaintiffs and defendant No. 1 was Rs 32,500/-

per month for the ground floor and Rs 16,250/- per month

each for the two portions of the basement floor, thereby

making a total rent of Rs 65,000/- per month. The case of

the plaintiffs is that defendant No. 1 failed to vacate the

tenancy premises on 30 th June, 2004 and the defendants

continued to stay there till September, 2004 when the

possession was handed over to them on 29th September,

2004. The case of the plaintiffs is that the tenancy premises

were extensively damaged by the defendants during the

period of tenancy and huge expenditure is required to

restore the premises to their original condition. This is also

the case of the plaintiffs that the market rent, prevailing in

the locality was Rs 80,000/- for the ground floor and Rs

30,000/- each of the two portions of the basement floor,

thereby making a total rent of Rs 1,40,000/- per month for

the premises which the defendants kept in unauthorized

condition till 29th September, 2004. The plaintiffs have

accordingly claimed a sum of Rs 4,20,000/- towards

damages for the use and occupation from July, 2004 to

September, 2004 after deducting a sum of Rs 3,00,000/-

which was already lying with them. Plaintiffs have also

claimed a sum of Rs 11, 20,000/- towards damages, alleged

to have been caused to the premises, Rs 27,090/- towards

unpaid electricity bills and Rs 78,075/- towards income-tax

deducted at source for which TDS certificates were not

issued by the defendants. Rs 11,20,000/- for the time of

about 8 months, which is required for restoring the

premises to its original condition. Rs 18,65,000/- towards

the estimated cost for repair of the damages, caused to the

premises, Rs 1500/- towards professional fee for the

architect and Rs 5000/- towards expenses of the

photographs taken by the plaintiffs, thereby making a total

sum of Rs 32,17,363/-.

3. The suit has been contested by the defendants.

They have denied having caused any damage to the tenancy

premises and have claimed that they have paid all the dues

while vacating the tenancy premises along with the

expenses which the plaintiffs sought for the necessary

repair work. According to them, only few minor repairs

were required and there was no damage as such to the

tenancy premises when it was vacated by them. Regarding

electricity bills, it is alleged that though the same were not

supplied to them by the plaintiff, they procured duplicate

bills and paid the entire amount till February, 2005, which

was beyond their stay in the tenancy premises. The

defendants have claimed that there was a mutual agreement

and understanding between the parties that they could

continue as tenant for 2-3 months for 1st July, 2004 and

therefore, there was no question of paying any mesne profit

to the plaintiff. According to the defendants, in fact, they

paid an additional sum of Rs 1,0,5,000/- to the plaintiffs

which they are entitled to recover from them.

4. The following issues were framed on the pleadings

of the parties:

1. Whether any damage to the suit property was

caused by the defendants during the period they remain

tenants in the said property and if so, what is the extent of

such damages? OPP

2. Whether the plaintiffs are entitled to recovery of

the suit amount from the defendants? OPP

3. Whether the plaintiffs are entitled to any interest

and if so, at what rate, on what amount and for which

period? OPP

4. Relief.

5. The onus of proving this issue was on the plaintiff.

Since no evidence has been led by the plaintiffs, the issue is

decided against them.

6. The plaintiffs have not led any evidence to prove

that they are entitled to recover any amount from the

defendants. As regards TDS certificates, the learned

counsel for the defendants has drawn my attention to the

order dated 18th November, 2005, wherein it was recorded

that the defendants had handed over three original TDS

certificates to the learned counsel for the plaintiffs. The

issue is decided against the plaintiffs and in favour of the

defendants.

7. Since no evidence has been led by the plaintiffs to

prove that any damages were caused by the defendants to

the tenancy premises, they are not entitled to any amount

for restoration of the premises to its original condition or

towards damages for period of 8 months which the plaintiffs

claim are required to restore the premises to its original

condition. The plaintiffs have also failed to prove any dues of

electricity still payable by the defendants. The plaintiffs have

not led any evidence to prove that market rent prevalent in

the locality, during the period of alleged overstay by the

defendants was more than the agreed rent. They have also

failed to substantiate their claim of professional fee of

architect and expenses for the photograph alleged to have

been taken by them. The issues are decided against the

plaintiffs and in favour of the defendants.

ORDER

In view of my findings on the issues, the suit is

dismissed, without any order as to costs.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE NOVEMBER 24, 2011 BG