Kavita Moin Jakhmola v. Dr Anil Sethi

RAJIV SAHAI ENDLAW, J. FEBRUARY 24, 2016

"M/bs"..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 24th February, 2016 + MRS. KAVITA MOIN JAKHMOLA ..... Appellant Through: Mr. Rohit Kumar, Adv. Versus DR. ANIL SETHI ..... Respondent Through: Mr. Anup J. Bhambhani, Sr. Adv. with Mr. Nagesh, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure 1908 (CPC) impugns the judgment and decree, dated 7th April, 2015 of the Court of Additional District Judge, Central - 14, Delhi in original Suit No. 428/2004, new Suit No.559/2014, of ejectment of the appellant from the premises earlier in her tenancy and for recovery of arrears of the rent of mesne profits. 2. The appeal came up first for admission on 7th July, 2015 when the counsel for the respondent appeared on Caveat and considering the limited nature of controversy therein, with the consent of the counsels, the appeal was finally heard, trial court record requisitioned and judgment reserved. The trial court record has been received and perused. 3. The respondent, on 10th December, 2004 instituted the suit from which this appeal arises, pleading (i) that he had in December, 2000 let out a portion of ground floor of property comprising of one drawing room, one kitchen, one dining space, two bed rooms at the rear, whole of backyard including one servant room in the backyard of his property No. C-49, Pamposh Enclave, New Delhi to the appellant/defendant at a rent of Rs.5500/- per month besides electricity and water charges; (ii) one study/room in the front of the ground floor was not let out to the appellant/defendant; (iii) the front lawn and the porch were meant for common use and never let out to the appellant/defendant; (iv) that the letting the appellant/defendant was at the behest of her husband who was a friend of the respondent/plaintiff and who represented that the appellant/defendant on account of his back injury was in need of a premises at ground floor and for this reason only the premises were let at a concessional rent of Rs.5,500/- per month as against the then prevalent rent of such premises of Rs.12000/- to Rs.18000/- per month; (v) that there was no agreement in writing; (vi) that the appellant/defendant was irregular in payment of rent and had not paid any rent since October, 2001 inspite of repeated demand; (vii) to placate the respondent/plaintiff, the appellant/defendant w.e.f. January, 2004, offered to increase the rent to Rs.8000/- per month; (viii) that the respondent/appellant was then stationed at Japan and on returning in April, 2004 called upon the appellant/defendant to pay the arrears of rent; (ix) instead, the appellant/defendant on 23rd August, 2004 unlawfully trespassed into the room in the front of the ground floor which was retained by the respondent/plaintiff for his own use; (x) that the tenancy of the appellant/defendant was determined vide legal notice dated 5th September, 2004. Accordingly, the reliefs of ejectment of the appellant/defendant, for recovery of Rs.2,71,550/- as arrears of rent with interest, for recovery of Rs.68,350/- towards mesne profit/damages for use and occupation and for recovery of future mesne profits at the rate of Rs.1000/- per day with interest were claimed. 4. The appellant/defendant contested the suit by filing a written statement pleading (a) that she is a tenant since December, 2000 in respect of the entire ground floor at the rent of Rs.3000/- per month; (b) that the respondent/plaintiff let out the premises to the appellant/defendant as the husband of the appellant/defendant was known to the respondent/plaintiff; (c) that no written agreement was executed and no rent receipt issued by the respondent/plaintiff stating that if he did so he will have to pay a higher house tax for the property; (d) that the appellant/defendant has been residing in the premises with her child as her husband is working in Singapore; (e) that it was the respondent/plaintiff who during his visit to India in Apr