JASBIR SINGH KATARI Vs. KEWAL RAJ SADHNA

JUDGEMENT

(1.) In this application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, the plaintiffs has claimed an injunction restraining defendants from parting with possession or creating third party's interest or from making any structural change in the disputed property or any part thereof and further directing the defendant to continue paying a sum of Rs.25,000.00 per month to the plaintiffs towards damages without prejudice to the rights and contentions raised by the plaintiffs during pendency of the suit.

(2.) The plaintiffs have alleged that they are joint owners of residential house No.C-1, 813, Asian Village Complex, Siri Fort Road, New Delhi which was let out to the defendant on 20.12.1991 for 11 months and on 25.12.1991 a formal agreement to let was signed between the plaintiffs and the defendants reducing the terms of lease in writing on a non-judicial stamp of Rs.3,000.00. The agreed rent payable by the defendant was Rs.25,000.00 excluding water and electricity charges payable in advance on or before 7th day of the month. On the day when possession was handed over to the defendant a cheque for Rs.75,000.00 was handed over to the plaintiffs towards two months' advance rent at the rate of Rs.25,000.00 and one month's rent to be kept as security which was to be paid back to the defendant on his vacation of the property. Defendant did not make any payment thereafter in time but sought extension by giving an excuse that due to paucity of funds and as a result of set back in the business he was unable to pay at that stage. He was expecting certain payments in his business. Since the defendant failed to pay rent after 20.2.1992 the plaintiff adjusted the security amount towards three months' rent upto 19.3.1992. By about September/October, 1992, the defendant started representing the plaintiffs that he would vacate the premises on the expiry of lease and would clear the oustandings. Defendant, however, failed to keep his word. He wanted further time to vacate since his two daughters were studying in Delhi Public School who were to have their final examinations in March/April, 1993 and thus assured the plaintiff that he would vacate the premises by May, 1993 and also clear his dues. On 5.5.1993, the defendant handed over another cheque of Rs.75,000.00. The cheque was got encashed and adjusted towards arrears of rent from 20.3.1992 to 19.6.1992. Receipt was issued. As regards vacation, defendant No.1 represented to plaintiff No.1 that he had negotiations with one N.R.I, for purchase of a house in Vasant Vihar but before deal could be finalised, the said N.R.I. died, therefore, transaction had been delayed. Thus, the defendant had been occupying the premises against the plaintiff's wishes arid had also failed to make the payment of arrears of rent. Despite letters and telegram, the defendant failed to clear the same. On 6.4.1994, notice under Section 106 of the Transfer of Property Act was sent to the defendant. In response to the notice a letter dated 18.4.1994 was received from defendant's counsel claiming ignorance regarding lease agreement dated 25.12.1991 and requesting for a copy thereof. Though a copy had been supplied to the defendant, in order to avoid any controversy, on 4.5.1994 another photo stat copy of the lease agreement which is on a non judicial stamp of Rs.3,000.00 was sent. The defendant sent his reply dated 16.5.1994 through his advocate denying the contents of the plaintiff's notice dated 6.4.1994 and even the fact of having executed the agreement of lease dated 25.12.1991. The defendant also denied the rate of Rent to be Rs.25,000.00 per month but claimed that the premises had been let out at a rental of Rs.6,250.00 p.m. The defendant took up a false plea that agreement of lease was forged and fabricated and his signatures thereupon were also forged. In these circumstances, the plaintiffs have claimed a decree for defendant's ejectment along with a decree for Rs.5,75,000.00 towards arrears of rent/damages from 20th June 1992 to 19th May, 1994 and damages for use and occupation charges at the rate of Rs.2,000.00 per day from 20.5.1994 till date of actual delivery of possession.

(3.) Defendant is vehemently contesting the suit. According to the defendant, he was looking for a property to buy in South Delhi but when he learnt that the plaintiffs were proposing to let out a house, a meeting took place in which the plaintiffs revealed that they were in fact anxious to sell the property and only as an interim measure had thought for renting it out, since it was neither possible for them to take care of the vacant property nor leave it uncared. After negotiations, the plaintiffs settled the sale for Rs.30,00,000.00. Since time was needed for the plaintiffs to obtain permission for sale and for the defendant to arrange for money, it was agreed that sale of flat would be completed by 31.3.1995 and in the meanwhile, possession of the flat would be given to the defendant as a tenant on a yearly rental of Rs.75,000/ payable in advance which was even prevailing rate of rent for such similarly situated premises in the locality. Rent paid by the defendant till time of sale was also agreed to be adjusted at the time of actual sale but treating it as an advance money. It was for these reasons that defendant paid Rs.75,000.00 twice after initial payment of Rs.75,000.00, thus, making a total payment of Rs.2,25,000.00. The plaintiffs got certain stamp/plain papers signed from the defendant which the defendant signed in good faith and also to enable the plaintiffs to complete the formalities. One of the plain papers was for the agreement to let on monthly rent of Rs.6,250.00. The defendant never doubted the intention and motive of the plaintiffs. On receipt of the legal notice from the plaintiffs, the defendant was shocked and realised the reason why the plaintiffs never issued rent receipts. The defendant also reported the matter to the S.H.O. concerned on 16th May, 1994. In this background, the defendant has stated that the premises were let out to him on a rent of Rs.6,250.00 p.m. A cheque for Rs.75,000.00 as an advance for one year upto 19.12.1992 was handed over to the plaintiffs and thereafter another cheque for Rs.75,000.00 towards rent till 19.12.1993 was handed over. Lastly the defendant sent a cheque for Rs.75,000.00 as rent upto 19.12.1994. Thus, rent stood paid till 19.12.1994. Had rent been Rs.25,000.00 per month, as alleged by the plaintiffs, there was no reason why the plaintiffs would have kept silent after three months of the first payment of Rs.75,000.00, which rent according to the plaintiffs was only for a period of three months. Because of the rise in prices of the properties, the plaintiffs became dishonest and, thus, wanted to wriggle out of the agreement to sell and that they had come out with a false case by forging the blank stamp papers on which signatures of the defendant were obtained.