INDRA SHARMA Vs. LT COL S K SHARMA

JUDGEMENT

(1.) Heard Sri R. N. Singh, senior advocate, assisted by Sri Rahul Sripat and Sri Rajul Bhargava, advocates appearing for the revisionist Smt. Indra Sharma in Civil Revision No. 83 of 2005. Sri Ravi Kant, senior advocate, assisted by Madhav Jain, advocate appearing for the plaintiff respondents. Sri Murlidhar, senior advocate, assisted by Sri R. P. Singh, advocate appearing for the M/s. Guruji Motors Pvt. Ltd. in Civil Revision No. 84 of 2005 and one of the respondent in Civil Revision No. 83 of 2005.

(2.) The Civil Revision No. 83 of 2005 is filed by Smt. Indra Sharma and Civil Revision No. 84 of 2005 is on behalf of M/s. Guruji Motors Pvt. Ltd. and others. Two revisions are consolidated. Counter and rejoinder-affidavits have been exchanged. Record of the lower court was summoned by a special messenger, which is also placed before me. The record is available as such I proceed to decide these revisions finally.

(3.) Both the revisions have been filed challenging the ex parte judgment and decree dated 31.1.2005 passed by Additional District Judge, Court No. 1, Agra in S.C.C. Suit No. 9 of 2004 instituted by the Col. S. K. Sharma against the defendants M/s. Guruji Motors Pvt. Ltd. and others for eviction and arrears of rent. According to the defendant-revisionist in Civil Revision No. 83 of 2005, Smt. Indra Sharma wife of the plaintiff was arrayed as proforma defendant. The revisionist and her husband had strained relations and were living separately. It is admitted between the parties that a divorce suit has also been instituted at the behest of Col. S. K. Sharma against Smt. Indra Sharma. According to the plaint's case, the disputed property comprises of portion of basement floor, second basement floor and ground floor of the building situated at plot No. 131/212, C.D. and E, The Mall, Agra Cantt Agra. The relief claimed in the plaint was for decree of eviction and recovery of Rs. 12,73,912 along with pendente lite and future interest at the rate of 6% per annum and that the plaintiff Col. S. K. Sharma be put in actual possession over the suit property. A decree for pendente lite mesne profit at the rate of Rs. 10,000 per day was also claimed by the plaintiff respondents. The case of the plaintiff was that the suit property was let out at the rate of Rs. 2,30,000 (Two lacs thirty thousand) per month. The lease deed was executed and according to the terms of the lease deed, 50% of the rent i.e., Rs. 1,15,000 (One lac fifteen thousand) was liable to be paid to the plaintiffs and the remaining half of the amount was to the co-landlord Smt. Indra Sharma. It is submitted that originally the property was leased for a period of 11 months and it was agreed that in case the tenants continue in occupation after expiry of the original period of tenancy, the rent will be enhanced by 5% on every occasion and fresh lease deed will be executed. It was admitted by the plaintiff that the tenants paid the plaintiffs share of rent upto May 2003 through cheque after deducting T.D.S. Initially, the amount towards rent paid to the plaintiff was at the old rate and thereafter for months of April and May, 2003 rent was paid at the enhanced rate, i.e., Rs. 1,20,750 (One lac twenty thousand seven hundred fifty) per month. It was clearly stated in the plaint that the plaintiff was not aware regarding payment of share to the other landlord his wife Smt. Indra Sharma. In paragraph No. 7 of the plaint, it has been stated that the defendants 1st Set, i.e., tenants have denied plaintiffs title and therefore renounced their character as tenants. The tenancy of Guruji Motors Pvt. Ltd. was determined by service of a duly registered notice dated 20.2.2004 calling upon them to pay entire arrears of rent and eviction. It was contended that the cause of action for recovery of rent arose on 30.6.2003 when the rent for first month became due and thereafter on the last date of every subsequent month till 24.3.2004. Perusal of the impugned judgment shows that the court below has recorded a finding "in respect of service of the summons that defendants neither filed the written statement nor they have appeared to oppose the suit. Hence the suit is heard ex parte". While decreeing the suit, learned Judge has accepted the version of the plaint and placed reliance on an affidavit filed in support of the plaint and certain other documents as per list 25 Ga holding that there is nothing on record to disbelieve the unopposed and uncontroverted version of the plaint and affidavit.