Full Text
Order delivered on: August 25, 2014 O.A. No.80/2014 & I.A. No.8731/2014 in CS(OS) No.832/2013
SAMINA ABBASI ..... Plaintiff
Through Mr.Sandeep Sharma, Adv. with plaintiff in person
Through Ms.Neha Sinha, Proxy Counsel
JUDGMENT
1. This is a suit for possession, recovery of arrears of rent and mesne profits filed by the plaintiff against the defendant.
2. Brief facts of the case are that the plaintiff is stated to be the owner of the suit property i.e. property bearing No. 6, Maulana Azad Cooperative H.B. Society, known as Lotus Apartments, Parwana Road, Delhi – 110034. On 8th July, 2011, the parties entered into a rent agreement in respect of the ground floor of the suit property, without roof rights for a period of two years. The said rent agreement was also got registered on the same day i.e. 8th July, 2011.
3. The rent for the first year was fixed at Rs. 24,000/- per month while for the second year was fixed at Rs. 26,400/- per month which was to be paid in advance on or before 10th day of every month. A 2014:DHC:4118 sum of Rs. 1000/- per month was also to be paid by the defendant towards the maintenance charges in addition to water and electricity charges.
4. It is the case of the plaintiff that from the very beginning the defendant had been irregular in making the payment of rent. Cheques issued by the defendant towards rent were dishonoured number of times. The details of cheques which got dishonoured in given Para 13 of the plaint. Defendant very irregularly and erratically made payment of rent till June, 2012 and has not paid rent since July,
2012.
5. Plaintiff time and again reminded defendant of his obligation of tendering rent and demanded rent from time to time on various occasions but defendant did not pay. Plaintiff served upon the defendant a legal notice dated 8th August, 2014 under Section 106 of Transfer of Property Act terminating the tenancy. Vide the said notice the defendant was also asked to clear the arrears of rent, pay maintenance charges and liquidated damages.
6. It is averred by the plaintiff that the defendant instead of making the due payment, threatened the plaintiff of dire consequences if the case is taken further. The defendant has brought big dogs in the house which is hampering plaintiff in using the other portions of the suit property.
7. The suit was listed before Court on 3rd May, 2013 when summons were issued to the defendant in the suit. The defendant was served with summons on 12th July, 2013 and on 3rd September, 2013 learned counsel appearing for the defendant sought time to file the written statement along with an application for condonation of delay. Despite of service and opportunity granted, no written statement was filed. The right to file the written statement was closed accordingly vide order dated 10th January, 2014.
8. The admission/denial of documents was also closed vide order dated 10th January, 2014 since the proxy counsel appearing on behalf of defendant stated that he was not authorized to carry out admission/denial and learned counsel for plaintiff stated that further adjournment would cause unnecessary delay so he shall prove the documentary evidence during trial.
9. Subsequently, when the matter was listed for plaintiff’s evidence, the defendant filed a chamber appeal being O.A. NO. 80/2014 against order dated 10th January, 2014 and I.A. No.8731/2014 seeking condonation of delay if filing the Chamber Appeal.
10. It has been stated in the appeal that defendant upon receiving the summons engaged an advocate who promised to file the written statement. However, on 3rd September, 2013 the said advocate did not appear and sent his junior to take a date for filing written statement. On the next date i.e. 10th January, 2014 also the advocate did not file the written statement and defence of the defendant was struck off.
11. It was only when the present counsel was engaged by the defendant, he checked the status of the suit and informed defendant about passing of the said order. The defendant confronted the previously engaged counsel but did not get any satisfactory reply therefrom. The defendant has stated to have lodged a complaint against the said advocate with the Bar Council of Delhi on 21st January, 2014.
12. It is the case of the defendant is not at fault for not filing the written statement within the statutory period and should not be made to suffer for the unprofessional conduct of the said advocate who misled and cheated on the defendant. The defendant has also filed an application for condonation of delay in filing the chamber appeal stating that he was misled by his previous counsel and sometime was consumed in getting the certified copy of the impugned order.
13. No arguments are addressed on behalf of the defendant on the chamber appeal and application when the same are listed. The same are dismissed.
14. To prove the facts stated in the plaint, the plaintiff has filed evidence by way of affidavit of Smt. Samina Abbasi, plaintiff, which has been tendered in the Court and also relied upon certain documents i.e. Ex. P1/1 to Ex. P1/4 which are as follows: Original Lease Agreement dated 8th July, 2011 as Ex-PW1/1. Original Cheques dated 16.1.12, 16.4.12 and 18.9.12 as Ex- PW1/2 (Colly). Copy of electricity bill as Ex-PW1/3. Office copy of legal notice dated 8th August, 2012 with original postal receipt as Ex-PW1/4 (Colly).
15. No written statement has been filed. The statement made in the plaint as well as the affidavit as evidence have gone unrebutted.
16. In the present case following facts and circumstances emerge from the pleadings of the parties: a) there exists relationship of land lord and tenant between the parties; b) notice of termination under Section 106 of TP Act has been duly served; c) the rate of rent exceeded Rs. 3500/-p.m. when the notice under Section 106 of Transfer of Property Act was served; and d) rent was always tendered on behalf of respondent.
17. All the three conditions in the present case are satisfied. The defendant has admitted the receipt of notice of termination and the rate of rent is more than Rs.3500/-. The relationship of landlord tenant is admitted by the defendant. It is settled law that where a claim is admitted, the Court has jurisdiction to pass a decree on admitted claim without leading any evidence in this regard.
18. In view of the facts and circumstances and settled law in this regard, the plaintiff is entitled a decree for recovery of possession of the entire ground floor of the suit property bearing No. 6, Maulana Azad O.OP. H.B. Society, known as Lotus Apartments, Parwana Road, Delhi – 110034. The suit is accordingly decreed to this effect in favour of the plaintiff and against the defendant. The defendant shall handover the vacant and peaceful possession of the ground floor of the suit property to the plaintiff on or before 30th September, 2014. On failure to do so on the part of the defendant, plaintiff would be entitled to take necessary action in accordance with law.
19. The learned counsel for the plaintiff state that as of today Rs.57,000/- is due towards electricity charges and about Rs.[1] lac is due towards water charges. The learned counsel for the plaintiff is not pressing his claim for mesne profits. The same is rejected. As far as security of Rs.[1] lac given by the defendant is concerned, learned counsel for the plaintiff says that the same would be adjusted towards the amount of water and electricity charges.
20. As agreed by the learned counsel for the plaintiff, the plaintiff is also entitled to a decree in respect of rent at Rs.26,400/- per month alongwith interest @9% p.a. from the date it was due till the entire payment is made by the defendant. In case, the defendant fails to pay the said amount, the plaintiff is entitled to recover the same by filing of execution.
21. The plaintiff is also entitled for costs of proceedings. The plaintiff in the present case has paid court fees at 4% as per amendment in the Court Fees Act. The amendment in the statute has been quashed. Thus, the request of the learned counsel of the plaintiff is allowed and plaintiff is entitled for refund of 3% of the court fees already paid under Section 16A of the Court Fees Act. The Registry would issue the requisite voucher for the same to the plaintiff accordingly within 8 weeks from today.
22. The decree be drawn accordingly. The suit is disposed of.
JUDGE AUGUST 25, 2014