Defendant failed to prove monthly rent of Rs.500 against claimed Rs.7,320, leading to dismissal of possession appeal and counter-claim for payment refunds.

JUDGMENT

Rekha Palli, J. (Oral)

CM APPL. 2531/2021-Condonation of delay

1. This is an application filed by the appellant seeking condonation of 40 days delay in re-filing the appeal.

2. For the reasons stated in the application, the same is allowed and the delay of 40 days in re-filing the appeal-RFA 42/2021 is condoned.

3. The application stands disposed of.

RFA 42/2021 & CM APPL. 2532/2021

RFA 297/2020 & CM APPL. 31775/2020

4. This common judgment disposes of two appeals being RFA 42/2021 and RFA 297/2020 both preferred by the defendant under Section 96 of the Code of Civil Procedure before the Learned Trial Court. Vide RFA No. 297/2020, the appellant seeks to assail the judgment and decree dated 18.08.2020 passed by the learned ADJ-3, South-West, Dwarka Courts, Delhi in CS No.16660/2016 whereby the suit of the respondent/plaintiff for possession of property bearing no. WZ-1673, Nangal Raya, New Delhi, for payment of Rs.2,63,520/- (Two Lac Sixty Three Thousand Five Hundred and Twenty only), towards arrears of rent along with interest @ 9% per annum for the period between 01.03.2010 to 28.02.2013 and mesne profits, has been decreed. RFA 42/2021 assails the judgment and decree dated 18.08.2020 passed by the learned ADJ-3, South-West, Dwarka Courts, Delhi whereby the Counter Claim No. 16722/2016 preferred by the appellant, has been rejected.

5. On the last date, the matters were adjourned to enable the learned counsel for the appellant to take instructions as to whether the appellant would be willing to seek time to vacate the subject premises. Today, he submits that the appellant wants his appeals to be decided on merits and, since both the appeals arise out of common facts, the same are being taken up for disposal and decided vide this common judgment.

6. The common case of the parties is that the subject property which was given on lease to the late father of the appellant, was thereafter being occupied by the appellant as a tenant. While it is the appellant's case that the monthly rent of the said property was only Rs.500/-, the respondent/plaintiff has claimed that the monthly rent as on 07.02.2009 was Rs.7,320/-.

7. It is the respondent's case that as the appellant failed to pay rent after 07.02.2009, a notice dated 18.02.2013 was issued to him terminating the tenancy and calling upon him to pay the arrears of rent of Rs.2,63,520/- (Two Lac Sixty Three Thousand Five Hundred and Twenty only) for the last three years i.e., from 01.03.2010 to 28.03.2013. Upon the appellant's failure to comply with the said notice, a suit for ejectment being CS No. 16660/2016 and arrears of rent, damages and mesne profits was preferred by the respondent/plaintiff therein. The appellant filed a written statement alleging therein that the rent of the property was only Rs.500/- per month and therefore, the suit for possession under Section 106 Transfer of Property Act, 1882 (`TPA') was not maintainable and the remedy, if any, available to the respondents was to initiate proceedings under the Delhi Rent Control Act. Simultaneously, the appellant also filed a counter-claim for a recovery of Rs.1,07,320/- (One Lac Seven Thousand Three Hundred and Twenty only) which he claimed had been paid to the respondent for construction of another floor over the tenanted shop as also the advance rent for the said floor.

8. After completion of pleadings, the parties led their respective evidence before the learned Trial Court. The appellant besides examining himself produced 4 off