The main legal point established is the reliance on the lease deed and the deposition of rent in the bank account to establish the relationship of landlord and tenant and the liability to pay mesne profits.

VALMIKI J. MEHTA, J.

CM No. 4325/2018 (Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No. 4326/2018 (delay in filing) & CM No. 4327/2018 (delay in re-filing)

For the reasons stated in the applications, delays in filing and re-filing are condoned.

CM stands disposed of.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the Trial Court dated 17.8.2017 by which the trial court has decreed the suit for possession and damages with respect to the suit property bearing no.21/22, Flat No.6, First Floor, Krishna Nagar, Safdarjung Enclave, New Delhi. Suit has also been decreed for recovery of arrears of rent amounting Rs.1,80,000/- and for use and occupation charges at Rs.20,000/- from March,2014 till receiving of possession by the respondent/plaintiff, and which rent of Rs.20,000/- is the admitted rate of rent.

2. Respondent/plaintiff filed the subject suit for possession, arrears of rent, mesne profits etc with respect to the suit property pleading that appellant/defendant is the tenant thereof in terms of the notarized lease deed dated 9.4.2011 signed by the respondent/plaintiff and the appellant/defendant. The period of lease under the lease deed dated 9.4.2011 was for 11 months and after the period of 11 months the tenancy continued from month to month. As the appellant/defendant failed to vacate the suit premises hence after serving of the legal notice dated 25.11.2013 terminating the tenancy, the subject suit was filed.

3. Appellant/defendant appeared and contested the suit and denied that there was any relationship of landlord and tenant between the parties. Suit was therefore prayed to be dismissed. It was pleaded that appellant/defendant was not in possession of the suit property. At this stage, on the aspect of existence of tenancy it will be relevant to note the pleading of the appellant/defendant in the written statement in para 2 of the preliminary objections as also para 2 of the reply on merits and these paras read as under:-

Para 2 of the preliminary objections of the Written Statement

“2. That there is no subsisting agreement between the parties, and there is no relationship between the defendant and the plaintiff as tenant and landlord qua the suit property.

Para 2 of the reply on merits

2. That the contents of para 2 of the plaint are wrong and same are denied. It is denied that the defendant is tenant of plaintiff on the basis of alleged notarized lease deed dt. 9.4.2011 signed and executed between the plaintiff and defendant. There is no subsisting and binding agreement as the said alleged lease deed dt. 9.4.2011 is not duly witnessed by two independent witnesses, hence same cannot be admitted admissible in evidence nor can be relied upon.”

(underlining added)

4. After pleadings were complete, the trial court framed the following issues:-

“1. Whether the plaintiff has no cause of action? OPD

2. Whether there is no subsisting agreement between the parties and there is no relationship of landlord and tenant between the plaintiff and defendant? OPD

3. Whether the suit is bad for misjoinder and non-joinder of the parties? OPD

4. Whether the plaintiff is entitled to decree for possession, as prayed for?OPP

5. Whether the plaintiff is entitled to damages/mesne profits @ Rs.50,000/- per month, as prayed for? OPP

6. Whether the plaintiff is entitled to decree of Rs.1,80,000/- towards arrears of rent w.e.f. June 2013 to February 2014? OPP

7. Whether the plaintiff is entitled to pendente lite and future interest @ 18% per annum on the outstanding amount from the date of filing of the suit till its realization? OPP

8. Relief.

5. Parties led evidence and this aspect is recorded in paras 5 and 6 of the impugned judgment which read as under:-

“5. The plaintiff, in order to prove his case, examined himself as PW-1 and his affidavit for evidence Ex.PW1/1. Sh. Pramod Kumar was examined as PW-2 and his affidavi