Delhi District Court
Sh. Anil Kumar Tuli vs Sh. Yogesh Sharma on 21 July, 2012
IN THE COURT OF SH. DEVENDER KUMAR, CCJ-CUM-ARC (WEST),
TIS HAZARI COURTS, DELHI.
E-154/11
Sh. Anil Kumar Tuli
S/o Late Sh. Ram Kala,
R/o H.No. 2400-A/1, Gali No. 19,
Shadi Pur, Ranjit Nagar,
New Delhi - 110 008.
......Petitioner
VERSUS
Sh. Yogesh Sharma
S/o Sh. Panchanand,
R/o H.No. 2400-A/1, Gali No. 19,
Shadi Pur, Ranjit Nagar,
New Delhi - 110 008.
......Respondent
Date of institution : 23/09/2008
Date of decision : 21/07/2012
JUDGMENT
Vide this judgment, I shall dispose off a petition U/s 14(1)(a) & (e) r/w section 25-B of DRC Act filed by the petitioner against the respondent. Brief facts of the case are as under:
1. The petitioner has alleged himself to be the owner and landlord of the property bearing no. 11/43 B, 2nd floor, Tilak Nagar, New Delhi - 110 018, let out to respondent for residential purposes on the monthly rent of Rs. 3,000/- per month excluding other charges. It is further alleged that the suit property is comprising of three rooms alongwith kitchen and bathroom as shown in the site plan which was let out on 14/01/2004 against rent agreement dated 24/01/2004. It is further alleged that E-154/11 Anil Kumar Tuli Vs. Yogesh Sharma 1/7 earlier the respondent and his wife were tenant in the premises situated at 1st floor in the same premises on the monthly rent of Rs. 4,250/- per month with security of Rs.
12,750/- vide agreement dated 05/03/2002 let out for 11 months. It is further alleged that the wife of the respondent became defaulter in making payment of rent and could not pay the rent amounts on the pretext of financial crises. It is further alleged that in view of the problems of the respondent and his wife, the petitioner allowed the respondent to shift to 2nd floor in the same premises vide agreement dated 24/01/2004, on the monthly rent of Rs. 3,000/- per month and the security already deposited. It is further alleged that the premises was let out for 11 months, but lease could not be renewed due to the behaviour of the respondent. It is further alleged that the wife of the respondent was in arrears of rent with regard to earlier premises and the respondent also followed the same pattern and is in arrears of rent w.e.f. June 2006 to July 2008 on the monthly rent of Rs. 3,000/-. It is further alleged that the respondent has failed to pay the rent amount despite service of legal notice dated 19/07/2008.
2. It is further alleged that the petitioner and his family was earlier having a rent free accommodation at Gopi Nath Bazar, Delhi Cantt., Delhi provided by the employer of the father of the petitioner, but said accommodation has been vacated by the petitioner in the month of June, 2008. It is further alleged that the son of the petitioner is of marriageable age and tenanted premises is required for occupation of the petitioner, his wife and his son for bonafide requirement. It is further alleged that the respondent has failed to vacate the premises and even has sent a false reply to the legal notice. The petitioner has prayed that the eviction order be passed in his favour.
3. The respondent has filed Written Statement to the petition thereby alleging that the petitioner is having sufficient accommodation to satisfy his needs. It is further alleged that the respondent is not in arrears of rent and even the petitioner is not the owner of the tenanted premises. However, it is admitted that the respondent and his wife were the tenant at 1st floor of the tenanted premises and rent agreement E-154/11 Anil Kumar Tuli Vs. Yogesh Sharma 2/7 was executed between them and security amount was also paid. It is denied that the wife of the respondent or respondent has committed any default in making the payment of the rent or they are under obligations to pay any amount. It is further alleged that the petition has filed a false petitioner which is liable to be dismissed.
4. During the pendency of the petition, an order U/s 15(1) of DRC Act was passed by this Court, but the respondent failed to comply with the order due to defence of the respondent was struck off vide order dated 24/12/2009. As such the respondent has not defence on merit.
5. The petitioner has examined himself as PW1 and PW2 Sh. Deepti Vishwakarma and close PE. In the absence of any defence the respondent has not examined any witness.
6. I have heard the arguments and perused the record. The relationship of landlord and tenant between the parties is not disputed and even documents PW1/B, which is an admitted documents, has proved the relationship of landlord and tenant between the parties. This documents is also proving the rate of rent of the tenanted premises @ Rs. 3,000/- per month. As such, both facts stands proved.
The other facts which were required to be proved by the petitioner U/s 14(1)(a) of DRC Act were the service of the legal demand notice to pay the arrears of rent and it's non-compliance. The petitioner has proved a legal notice Exh. PW1/C which was sent through postal receipts PW1/B (colly). Though the petitioner has alleged that the legal notice was duly replied by the respondent, yet no such reply dated 19/08/2008 has been proved on record, due to this fact could not be proved. However, the legal notice Exh. PW1/C was sent at the correct address by the petitioner vide UPC and registered post Exh. PW1/B (colly) and the same was not received back by the petitioner. If a document is sent at the correct address and not received back, E-154/11 Anil Kumar Tuli Vs. Yogesh Sharma 3/7 then it may be presumed U/s 27 of General Clause Act that the same was duly served upon the respondent. The respondent was required to rebutt this presumption but the respondent has failed to rebutt this presumption in the absence of any defence and it shall be considered that the legal notice was duly served upon the respondent.
The respondent was required to comply with the legal notice and to pay the arrears of rent within the stipulated period, but the respondent has not proved any document on record to prove that the legal notice was complied with or rent was paid. It has been held by Hon'ble Supre Court of Inida in Raghubir Prasad Vs. Rajinder Kumar Gurudev, 1993 (2) RCR (Rent) 234 & Sukhanand Vs. IVth Additional District Judge, Bulandshehar & Ors., 1994 (2) AIR CJ 27 that the onus to prove rent is on the tenant and oral testimony of payment of rent is not sufficient to shift the onus of tenant on landlord. In fact, it was the obligation of the respondent to prove the payment of rent in pursuance of legal notice Exh. PW1/C, but the respondent has failed to prove on record that he ever complied with the legal notice and it may be presumed that the legal notice was not complied with. As such, the respondent has failed to comply with the legal notice and petitioner has proved that the respondent has committed a default in making the payment of rent and has failed to clear the outstanding rent despite service of legal notice. As such, petition U/s 14(1)(a) of DRC Act stands proved.
7. The other ground on which basis the petitioner has sought the recovery of his tenanted premises is U/s 14(1)(e) i.e. bonafide requirement. The petitioner has alleged that the premises is required for the bonafide requirement by the petitioner as well as his family members. It is further alleged that the petitioner has vacated the Government accommodation alloted to his father at Delhi Cantt and now he wants to shift to the tenanted premises and even the premises is required for his son who is of marriageable age. Thus, the petitioner wants to settle his son after his marriage in the tenanted premises. Though the respondent has no defence on merit, yet it was the E-154/11 Anil Kumar Tuli Vs. Yogesh Sharma 4/7 onus on petitioner to prove his case. In fact, merely striking off the defence of the opposite party does not make entitle the petitioner to get the relief. Even in the absence of any defence the petitioner has to prove his case of his own. In the present case the respondent has cross-examined both the PWs. Even in the absence of the defence of the respondent, the admissions of the petitioner during cross-examination have to be considered against him. During the cross-examination, the PW1 has deposed that the property bearing no. 11/43-B, Tilak Nagar, New Delhi - 110 018 is consisting of ground floor, 1st floor and 2nd floor and he is residing in the veranda of 1st floor. It is further deposed that his daughter and son-in-law are in occupation of remaining portion of the 1st floor. It is further deposed that the ground floor was earlier let out to one Sh. Harjinder Singh Bindra who has recently vacated the ground floor in the month of November, 2009. It is further deposed that he has filed present petition for residence of himself as well as for his son who is of marriageable age and is to be settled financially. It is further deposed that the ground floor cannot serve the purpose as he will use the ground floor for starting of business and the 2 nd floor is required for residential purposes. It is admitted that at present ground floor is lying vacant. PW2 has also deposed that at the time of filing this petition, another tenant was residing on the ground floor, but at present he is not residing. It is further deposed that it is correct that at the time of her marriage, 1st floor was lying vacant. It is further deposed that at present her father is not doing any business of his own, but he is assisting her brother in his business. It is further deposed that there were three rooms on the ground floor of property bearing no. 11/43-B, Tilak Nagar, New Delhi at the time of her marriage. It is further deposed that there were three rooms on the 1st floor and three rooms on the 2 nd floor. It is further deposed that his brother is running a fast food restaurant in the name of M/s R. Taste on the ground floor. It is further deposed that the ground floor was got vacated for starting the business of his brother as he was not doing anything. It is admitted that they have filed a suit for possession against tenant who was residing on the ground floor. It is further deposed that her in-laws are residing at Lucknow and at the time of her marriage, her husband was working and residing in Delhi. It is further E-154/11 Anil Kumar Tuli Vs. Yogesh Sharma 5/7 admitted that after her marriage she is residing with her husband. It is further deposed that her parental family consists of her parents and her brother. It is denied that the petitioner is having sufficient accommodation.
8. After going through the testimonies of both the witnesses, it is clear that the petitioner is seeking recovery of possession of the tenanted premises for bonafide requirement of himself a well as his son. However, during the pendency of the petition, the ground floor property earlier let out to one tenant Sh. Harjinder Singh Bindra has been vacated and even at present ground floor is lying vacant. It has been held by Hon'ble High Court of Delhi in Ved Prakash and anothers Vs. Om prakash Jain, 2009 (10) AD (Delhi) 284 and G. C. Khanna Vs. Electric Construction and Equipment Co. Ltd., 2007 (139) DLT 128 that as long as an eviction petition is pending each and every subsequent event which is relevant for a proper adjudication of rival claims can always be brought to the notice of the Court. In deed, it is the duty of every Court to take it on record. In view of these judgments, it is clear that the court is under obligation to consider the subsequent events. In the present case also, at the time of filing this petition, the petitioner might have a shortage of accommodation, but during pendency of this petition, one tenant namely Sh. Harjinder Singh Bindra has vacated the premises in the year 2009 itself on ground floor and even at present ground floor is lying vacant. As per the testimony of PW2, three rooms are lying vacant on the first floor and on ground floor one shop has been vacated by the tenant during the pendency of this petition. After the availability of so much space with the petitioner, it cannot be said that the petitioner has no alternative accommodation to satisfy his needs. The premises on ground floor is lying vacant and the same may be used to satisfy the needs of the petitioner. Even a shop got vacated during pendency of this petitioner may also be used to satisfy the needs of the petitioner with regard to commercial space. The son of the petitioner has already settled financially and running a restaurant on ground floor and petitioner is just assisting him and has no requirement of separate accommodation. The family of the petitioner is not of such large that it may E-154/11 Anil Kumar Tuli Vs. Yogesh Sharma 6/7 have paucity of space after the availability of such space. As such, the petitioner has failed to proved his petition qua U/s 14(1)(e) of DRC ACT and requirement of the petitioner is not bonafide.
9. The petitioner has proved his case with regard of U/s 14(1)(a) of DRC Act, but has failed to prove his case qua U/s 14(1)(e) of DRC Act. The petition of the petitioner is hereby dismissed U/s 14(1)(e) of DRC Act.
10. Put up on 31/07/2012 for arguments on the benefit of U/s 14(2) of DRC Act.
11. Naib Nazir is directed to filed his report with regard of compliance of order U/s 15(1) of DRC Act.
Dated:-21/07/2012 (Devender Kumar)
Announced in the open Court. CCJ-cum-ARC (West)
Room No. 139, Tis Hazari Courts
Delhi.
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