Delhi District Court
Rajni Sangwan vs S. Kulwant Singh on 11 April, 2018
IN THE COURT OF SH. NAVJEET BUDHIRAJA, ACJ/CCJ/ARC(WEST)
TIS HAZARI COURTS, DELHI
No.25942/16
Date of Institution:11.07.2007
Date of Decision:11.04.2018
Rajni Sangwan
W/o Sh. Sanjay Sangwan,
R/o H. No.7, Gali No.10,
Madan Park, East Punjabi Bagh,
New Delhi. ...Petitioner
Versus
S. Kulwant Singh
S/o S. Manohar Singh
5A, Ashoka Park Extension, Village Basai Dara Pur,
New Delhi-110026.
Also at:
6/2, Krishna Park,
Tilak Nagar, New Delhi ...Respondent
JUDGMENT
1. The judgment is in respect of petition under section 14 (1) (a), (f) and (j) of Delhi Rent control Act, 1958 (DRC Act) filed on behalf of the petitioner Smt. Rajni Sangwan against Sh. Kulwant Singh, the respondent.
2. The epitome and long and short of the case of the petitioner is as follows:
No. 25942/16 Page no. 1 of 24 "That petitioner is the owner/landlord in respect of premises no. 5A, Ashoka Park Extension, Basaidarapur, New Delhi-110026 (tenanted premises). Respondent though is a tenant in the premises for 22 years at the rent of Rs. 340/- per month (when the petition was filed) but he is not residing in the premises. Instead 2-3 relatives of the respondent are living there and respondent himself is residing with his family at 6/2, Krishna Park, Tilak Nagar, New Delhi. The tenanted premises comprises of first floor without any rights over the roof of the same which consists of two rooms, kitchen, toilet, front varanda and back open terrace. The respondent has illegally covered the front varanda and open terrace at the back without the consent of the landlord. Respondent has been in arrears of rent from August 2005 onwards and notice dated 22.01.2007 was sent to him by registered post terminating his tenancy rights but despite that respondent has neither tendered the rent nor vacated the tenanted premises".
3. Defendant contested the present petition by filing detailed written statement, the contents of which in brief are as under:
"That the eviction petition is not maintainable in respect of the part of the tenanted premises. By virtue of rent agreement between the respondent and erstwhile landlord Sh. P.V. Krishna Murty, respondent was inducted as tenant at the first floor of the tenanted premises alongwith the roof rights. The tenanted premises was further sold to Sh. Ashok Gupta and Sh. Parveen Gupta who never stayed in the premises, which was then sold to the present petitioner. However the terms of the tenancy remained the same. The rent receipts filed on behalf of the petitioner with regard to area of accommodation are fabricated. Neither the contents of the same were explained to the respondent nor was he in know of the same. It is denied that the respondent is not residing in the tenanted premises. The respondent is having strained relationship with his wife and his son, therefore they are not residing with him and otherwise also property no. 6/2A, Krishna Park, Tilak Nagar, New Delhi belongs to his wife. It is denied that any alterations or additions have been made in the tenanted premises. The respondent has not carried out No. 25942/16 Page no. 2 of 24 any legal construction in the tenanted premises. That false and frivolous notice dated 24.01.2007 was served upon the respondent merely to create confusion. The respondent has never been in arrears of rent and has been regularly paying the same and is being deposited in the court".
4. Replication was filed on behalf of the petitioner remonstrating the contents of the same and reinforcing the contents of the petitioner.
5. In petitioner's evidence, petitioner got examined herself as PW-1 vide her affidavit Ex. PW-1/A. The site plan is Ex. PW-1/2 and the rent receipts are Ex. PW-1/3. The copy of registered sale deed is Ex. PW-1/4 (OSR), the notice is Ex. PW-1/5, registered postal receipts are Ex. PW-1/6 and Ex. PW-1/7. Five photographs are marked as Mark D. She was cross-examined on behalf of the respondent. Thereafter petitioner's evidence stood closed.
6. Respondent examined five witnesses in his defence.
(a) Respondent himself examined as RW-1 vide his affidavit Ex. RW-1/A. Original document bearing signature of Late Sh. P.V. Krishna Murthy is Ex. RW-1/1. Payment of receipts of rent is Ex. RW-1/2A to Ex. RW-1/2G. Copy of police complaint dated 05.08.2006 is Ex. RW-1/3. Compromise deed is Ex. RW-1/4.Copy of Ration Card including the details of family members is Ex. RW-/5(OSR). Copy of Election Card is Ex. RW-1/6 (OSR). Computer generated extract electoral roll is Ex. RW-1/7 (OSR), Copy of Aadhar Card is Ex.RW-1/8 (OSR). Certified copy of the complaint dated 05.08.2006 is Ex. RW-1/9.
(b) Sh. Kanwar Singh, RW-3 from Assembly Constituency 25, who exhibited documents as RW-3/1 and RW-3/2.
(c) HC. Gaj Raj Singh as RW-4 who filed document Ex. RW-4/1. No. 25942/16 Page no. 3 of 24 (d) Sh. Swaroop Chand Rana from UIBAI with Ex. RW-5/1 (colly). (e) Sh. Parvinder Kumar, as RW-6 with Ex. RW-6/1 (objected to) and RW-6/2 (colly).
7. After consummation of respondent's evidence, final arguments were advanced.
Ld. counsel for the petitioner has argued with vehemence that the petition deserves to be allowed in view of the callous conduct of the respondent from the beginning which is reflected from the order sheets. Ld. Counsel thereafter highlighted certain defaults in compliance of order under section 15 (1) of DRC act. Ld. Counsel for the petitioner also took this court through the cross-examination of the respondent to highlight the crucial admissions made in favour of the petitioner. Ld. Counsel further argued that veracity of the respondent stands impeached from those admissions which he has made in relation to the previous suit filed by him against the husband of the petitioner. Despite service of legal notice dated 24.01.2007, respondent has failed to clear the arrears.
On the other hand, Ld. Counsel for the respondent clamoured for the dismissal of the petition on the ground that the demand notice itself is not valid since the same is in respect of payment of arrears of rent from August 2005 whereas tenanted premises was purchased by the petitioner in July 2006 thus, there is no right in his favour to claim the previous rent. There is no clause in the sale deed vide which petitioner became the owner that he was entitled to recover previous arrears. Ld. Counsel further argued that a draft of Rs. 6800/- was given by the respondent to the petitioner which was refused. Ld. Counsel also argued that there is material discrepancies between the arguments and the evidence of the petitioner. Futher, original owner of the tenanted premise was Sh. P.V. Krishna Murthy who had inducted the respondent as tenant on the first floor with roof rights. There is thus a major flaw in the petition that only partial eviction of the first floor has been sought and not the roof. The property was thereafter sold to Gupta Brothers and tenancy was continued under same terms and conditions. Respondent was not served with No. 25942/16 Page no. 4 of 24 any notice under section 55 of Transfer of Property Act. Also, the notice is defective in the sense that the tenancy of the respondent was terminated which is not legally permissible. Order under section 15 (1) of DRC Act was passed in absence of the respondent and otherwise also the said order is not valid since it has also directed the respondent to pay the rent for the period August 2005 which admittedly has already stood paid. Ld. Counsel for respondent has relied upon following judgments: State of Maharashtra Vs. Kannaiya Devji Bhai Borisa And Ors. DOD 18.07.1994, N.M. Engineer And Ors Vs. Narendra Singh Virdi and Anr., DOD 12.07.1994, Dr. Rash Lal Yadav Vs. State of Bihar and Ors. DOD 23.06.1994, Sheikh Noor and Anr. Vs. Sheikh G.S. Ibrahim (Dead) by LRs. DOD 04.08.2003, Gazi Saduddin Vs. State of Maharashtra And Anr, DOD 25.08.2003, Kamala Bakshi Vs. Khairati Lal, DOD 30.03.2000, Ram Murti Vs. Bhola Nath and Anr. DOD 01.05.1984, Jagan Nath Vs. Ram Kishan Dass and Anr. DOD 12.12.1984, S.M. Mahendru and Company etc Vs. State of Tamil Nadu and Anr, DOD 12.12.1984, Kamla Devi Vs. Vasdev, DOD 14.12.1994, Balwanti Devi Vs. Mahesh Kumar Chopra, DOD 01.02.2012.
Ld. Counsel for petitioner has rebutted the abovesaid contentions by stating that the demand notice cannot be said to be invalid in view of the judgments of the Superior Courts. The tenancy was in respect of first floor only which is evident from the admitted rent receipts. Further, the sale deed authorizes the petitioner to realize the previous arrears of rent. Ld. Counsel has also relied upon various judgments: Ashok Kumar Manilal Vs. Gandhi Vrajilal Gabrrulal Dessa, Gujarat High Court dated 08.02.1995, Lalshankar Mulji Joshi Vs. Kantilal Mohanlal Parikh And Anr, Bombay High Court dated 14.10.1971, Deepak Nijhawan and Anr. Vs. RN Abrol, Delhi High Court dated 23.12.2015, Raj Rani Vs. Gian Chand, Delhi High Court dated 25.02.1986, Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif & Ors , Supreme Court of India, dated 19.04.1968, M/s K.B. Saha And Sons Pvt. Ltd. Vs. M/s Development Consultant Ltd, Supreme Court of India dated 12.05.2008, Parvati Devi Vs. Mahender Singh, High No. 25942/16 Page no. 5 of 24 Court of Delhi dated 01.11.1995, Sarla Goel & Ors. Vs. Kishan Chand, Supreme Court of India dated 08.07.2009, Kuldeep Singh Vs. Ganpat Lal & Anr., Supreme Court of India dated 05.12.1995, E. Palanisamy Vs. Palanisamy (D) by LRs & Ors, Supreme Court of India dated 31.10.2002, Harcharan Singh Sethi Vs. Darbari Lal Batla, High Court of Delhi dated 21.08.2014, Dharamvir Walia & Anr. Vs. Dhani Ram, High Court of Delhi dated 09.12.2014.
8. I would like to start my discussion with clause 14 (1) (f) of Delhi Rent Control Act, 1958. In order to succeed under this clause the landlord must prove:
(a) That the premises have become unsafe or unfit for human habitation.
(b) That he bona fide requires the same for carrying out repairs and
(c) That such repairs cannot be carried out without the premises being vacated.
9. In order to establish this clause, the petitioner/PW-1 has deposed in para no. 7 of her affidavit as "I say that the respondent has carried out illegal construction in the premises, which is very old and that too without the permission of the landlord. Serious cracks have developed in the property by illegal and unauthorised acts of the respondent as aforesaid because of which the premises has become unsafe and unfit for human habitation. The premises as such are required bonafide by the deponent for carrying out repairs, which cannot be carried out without the premises being vacated by the respondent".
10. It can be seen from the aforesaid extract that the testimony of the petitioner is not lucid in as much as the same is bereft of any details as to how the tenanted premises has become unsafe and unfit for human habitation. Merely because some cracks have developed in the premises will not be sufficient to assume that the same has become unsafe and unfit for human habitation. There is also no averment as to why the repair cannot be carried out without getting the premises vacated. It was incumbent upon the No. 25942/16 Page no. 6 of 24 petitioner to have culled out the details as to the bonafide requirement of the premises for carrying out repairs which cannot be done while respondent is in occupation of the same.
11. PW-1 has conceded in her cross-examination that she did not engage any professional engineer to seek opinion regarding unfitness of the tenanted premises. She has also admitted having never resided in the premises. She however stuck to her stand that she has observed structural damages and cracks in the tenanted premises. But merely producing photographs on record will not be sufficient in the absence of any material on record to substantiate this plea.
12. Thus, in my opinion petitioner has miserably failed to establish her case under section 14 (1) (f) of DRC Act.
13. Now embarking upon the case of the petitioner under section 14 (1) (j) of DRC Act.
14. No hard and fast definition of "substantial damage" is possible. Each case depends upon its own facts. No exhaustive list of constructions that constitute damage can be given. The determination of that question depends on the facts of each case. Any alteration which diminishes the value may fall within the definition of "damage". Every material alteration may not necessarily amount to "damage". The word used is "damage" and not "material alteration".
15. Damage signifies an act which has the effect of diminishing or impairing the utility and value of something or endangering its safety or shortening the period of its utility and where damage is considerable and not of an minor or paltry nature, it would be considered to be substantial. In a case under section 14 (1) (J) of the Act, the landlord must establish by positive evidence that the alterations made by the tenant have materially impaired the utility or value of the demised premises.
No. 25942/16 Page no. 7 of 24
16. In the judgment in Suraj Prakash Vs Baijnath Bhawani and others 103 (2003) Delhi (Supra), for a case to fall under Section 14 (1) (J) of the Act, the Supreme Court has laid down the following propositions.
(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord:
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant. :
(iii) tenant has made the construction without the consent of landlord :
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises :
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out :
(vi) Landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined :
(vii) An eviction order under clause (J) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises :
(viii) Every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilization aspect of the building:
(ix) A temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises:
(x) Every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under clause (J) and that each case would depend upon its own facts.
(xi) The impairment of the value and utility of the building is to be seen from the point of view of the landlord and not the tenant.
17. To prove her case under this clause, petitioner has testified in para no. 8 of her testimony as follows:
"I say that the respondent has caused or permitted to have cause substantial damage to the premises by carrying out illegal construction therein knowing fully well that the building is an old construction and it cannot withstand the construction so made.
No. 25942/16 Page no. 8 of 24 In fact several cracks have already developed in the building which has become dangerous and unfit for human habitation. Further the construction is illegal as the same is against the MCD Rules and Building Bye-Laws as are application to the property in question. By doing so, the respondent has made the deponent also liable for prosecution for violations of MCD Laws, Rules and Bye-Laws framed there under".
18. Apart from the aforesaid extract, there is no other evidence or for that matter any averment that the respondent has caused substantial damage to the tenanted premises. In the petition, though the petitioner has squealed that the respondent has carried out illegal construction by covering the front varanda and the rear open terrace without the permission of the landlord. But in her evidentiary affidavit, there is no such averment except that some illegal construction has been carried out by the respondent which has caused substantial damage. There is not an iota of evidence as to what illegal construction was carried out, how the same has caused substantial damage to the tenanted premises and how the same is against the MCD Rules and Building Bye-Laws. It is limpid that the testimony of the petitioner on this count suffers from equivocation and prevarication and thus cannot be given any credence. Thus, petitioner has also failed to build her case under section 14 (1) (j) of DRC Act.
19. Now embarking upon the discussion on section 14 (1) (a) of DRC Act which is infact the primary bone of contention between the parties. Petitioner has claimed that the respondent had been in arrears of rent since August 2005. Legal notice dated 24.01.2007 was sent to the respondent by registered post but despite service respondent failed to clear the dues. Respondent on the other hand has disputed this fact by emphatically asserting that the rent has regularly been paid to the petitioner and there was no cause of action to file the present petition.
20. To prove the case under Section 14 (1) (a) of DRC Act, petitioner is required to prove the following ingredients:-
No. 25942/16 Page no. 9 of 24
(i) That there is relationship of landlord and tenant between the parties;
(ii) Rate of rent;
(iii) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
(iv) That a valid legal demand notice was duly served upon the respondent; and
(v) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
These ingredients are discussed one by one as below:
(i) Relationship of landlord and tenant between the parties.
Petitioner has claimed to be the owner and landlord in respect of the tenanted premises of which respondent is a tenant. Respondent has also nowhere denied the petitioner to be the landlord/owner of the tenanted premises. Respondent has stated in his written statement that the earlier landlord was Sh. P.V. Krishanmurthi with whom he entered into a rent agreement. Sh. Krishna Murthy sold the tenanted premises to Sh. Ashok Gupta and Sh. Praveen Gupta who further sold the tenanted premises to petitioner.
It is also evident from the testimony of PW-1 that she became the landlady/owner of the tenanted premises having purchased the same from Sh. Ashok Gupta and Sh.Parveen Gupta vide registered sale deed dated 04.07.2006 which is Ex. PW-1/4 (OSR). Respondent attorned the petitioner as his landlord which is evident from para no. 24 of affidavit Ex. RW-1/A whereas he has claimed that he has filed a civil suit bearing no. 779/06 before Ld.Civil Judge, THC and police complaint dated 05.8.2006. Although, the number of civil suit is mentioned as 779/06, however from the cross-examination of respondent/RW-1 it is quite clear that the suit for permanent injunction numbered as No. 25942/16 Page no. 10 of 24 1179/06 was filed by the respondent against the husband of the petitioner, the proceedings of which are Ex. RW-1/P-1. It has nowhere been denied by respondent that he was not aware of the purchase of the tenanted premises by the petitioner in July 2006. In view of this, realaitionship of landlord and tenant between the landlord and tenant stands established.
(ii) Rate of rent;
Petitioner has claimed the rate of rent to be Rs. 340/- per month excluding of water and electricity charges, which fact has also not been oppugned by the respondent. Thus, rate of rent stands established at Rs. 340/- per month.
(iii) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
(iv) That a valid legal demand notice was duly served upon the respondent; and Both these ingredients are dealt with together.
Petitioner/PW-1has testified by way of affidavit Ex. PW-1/A that legal demand notice dated 24.01.2007 Ex. PW-1/5 was sent to the respondent by registered postal receipts Ex. PW-1/6 and Ex. PW-1/7 which was duly served upon the respondent. No counter suggestion was posed to PW-1 on behalf of respondent no.1. Respondent has in fact admitted in his evidentiary affidavit Ex. RW-1/A that a notice dated 24.01.2007 was served upon him. Thus, this ingredient also stands duly established.
However, at this stage, one limb of argument which was raised on behalf of respondent is worth deliberating upon. Ld. Counsel for respondent has ambitiously argued that the legal demand notice even though was served but the same was not valid as the petitioner had claimed the arrears of rent since August 2005 whereas petitioner became the owner of the tenanted premises in July 2006. As per the settled law, petitioner was not entitled to claim No. 25942/16 Page no. 11 of 24 the previous arrears of rent and therefore the entire notice is non-est in the eyes of law. Ld. Counsel has relied upon the judgment of Hon'ble Supreme Court of India in M.N. Engineers Vs. Narendra Singh Virdi and Anr. 1994, (5) (SCC) 261 to bring home the point that the rent could have been recovered as a debt/actionable claim. It has also been argued that there was no assignment of right to recover the previous rent in favour of the petitioner. Ld. Counsel for petitioner on the other hand has countered this argument by stating that the sale deed Ex. PW-1/4 executed between the petitioner and the erstwhile landlord authorizes the petitioner to recover and realize the rent from the respondent. He has also argued that even if the rent for the said period is to be excluded, still the respondent was duty bound to pay the arrears of rent from July 2006 onwards and therefore legal notice cannot be discarded in entirety. To buttress this submission, Ld. Counsel for the petitioner has relied upon the judgment of Delhi High Court in Deepak Nijhawan and Anr. Vs. R.N. Abrol, DOD 23.12.2015.
Before I delve into the abovesaid broached issue, let us take note of the factual matrix of the case on the aspect of payment of rent for the period August 2005 till January 2007 (when the legal notice was served upon the respondent). Respondent has not filed any rent receipts or documentary evidence to prove that he has paid the rent from August 2005 onwards either to the erstwhile landlord or to the petitioner. Petitioner on the other hand filed certified copy of previous suit proceedings of suit for permanent injunction which was filed on behalf of the respondent Sh. Kulwant Singh against the husband of the petitioner Ex. RW-1/P-1 as per which in para no. 3 of the plaint, respondent Sh. Kulwant Singh has admitted the rent having been paid till August 2005. Although, in the cross-examination of respondent/RW-1 he expressed his ignorance over the filing of this injunction suit in the year 2006, however when he was confronted with the certified copy of this suit, he admitted his signatures. Thereafter in his further cross-examination RW-1 claimed to have paid the rent for the period August 2005 to June 2006 to Sh.Parveen and Sh. Ashok Gupta. RW-1 also claimed to have filed the rent receipts for this period.
No. 25942/16 Page no. 12 of 24 However, when a counter question was put to him that he had not filed any such rent receipts on record, RW-1 drew a blank. He was also confronted with para no. 3 of his plaint Ex. RW-1/P-1 in regard to which also he was nescient. Thus, it is clear from the evasive conduct of respondent that he has falsely claimed to have paid the rent for the period August 2005 onwards till June 2006 to Sh. Parveen and Sh. Ashok Gupta. No rent receipts for this period have been filed on record. Therefore this claim of the respondent is entirely debunked.
As regards the payment of rent for the period July 2006 till January 2007 also, respondent has failed to file any rent receipts or documentary proof. It would be relevant at this stage to relate the proceedings of the case when the case was initially filed in July 2007. Respondent was proceeded ex-parte vide order dated 16.01.2008. An order under section 15 (1)of DRC Act thereafter was passed directing the respondent to pay or deposit rent @ Rs. 340/- per month with effect from August 2005 and also to continue to pay or deposit future rent month by month by 15th of each succeeding English Calender Month. Thereafter, an application for setting aside ex-parte order was moved on behalf of respondent on 05.04.2008. At this juncture, it would also be germane to reproduce para no. 7 and 8 of the said application.
"7. That applicant/respondent without prejudice to the rights and contention is willing to deposit the arrears of rent with this Ho'ble Court and infact has tendered in cash the same to the petitioner and it is the petitioner, who did not accept the same".
"8. That petitioner has purchased the subject property from the previous owner in the month of July, 2006 and respondent/applicant has regularly paid the rent to the previous owner and Respondent is filling a draft of Rs. 6800/- in favour of the petitioner alongwith the present application in terms of the order of this Hon'ble Court".
It is manifest from above extract of the application that the respondent sought to place on record bank draft no. 125959 dated 29.03.2008 for Rs. 6800/- towards arrears of rent @ No. 25942/16 Page no. 13 of 24 Rs. 340/- per month w.e.f August 2006 onwards without prejudice to his rights and contentions. He also submitted in para no. 7 that he had tendered the same in cash to the petitioner which was refused. Order dated 16.04.2008 also reflects that petitioner refused to accept the draft since it was not towards the entire arrears of rent w.e.f August 2005.
There is also disparateness between the written statement of the respondent with that of his evidentiary affidavit. In para no. 3 of his written statement, respondent has stated "The property was further sold to the present landlady by the above stated landlord and they started to collect the rent from the respondent". Whereas on the other hand, in his evidentiary affidavit, respondent stated in para no.6 as " the property was further sold to the present landlady by the above stated landlord and the present petitioner did not receive the rent from the deponent out of malafide as she wanted to create a ground to file the eviction case against the deponent". Thus, it is clear that respondent has made inconsistent statements with regard to payment of rent to the petitioner. Though, respondent attempted to pay the rent for the period August 2006 onwards pursuant to the order of the court under section 15 (1) of DRC Act, the burden was upon him to show that he was not in arrears of rent for the period August 2006 till 24.01.2007 when the legal notice was sent to him which was admittedly received. But since, respondent has failed to show by any evidence that the rent for the said period was ever tendered or paid to the petitioner, he is held to be in arrears of rent. It is settled law that when the petitioner alleges non payment of rent, the onus lies upon the tenant to prove that he has paid the rent. It is been held in 'Sukhanand v. Additional District Judge, Buland Shahar & Ors. (1994) RCR Rent 408, that the onus to show payment of rent lies on tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all. Similar view has been reiterated in the case titled as 'Raghubir Prasad v. Rajinder Kumar Gurudev, 1993 (2) RCR Rent 234.
No. 25942/16 Page no. 14 of 24 Now reverting to the question of law which was broached by both the Ld. Counsels whether the rent for the period August 2005 onwards till June 2006 can be claimed by the petitioner herein under section 14 (1) (a) of DRC Act as arrears of rent. The judgment relied upon by Ld. Counsel for respondent in M.N. Engineers Vs. Narender Singh Virdi and Anr. (Supra) is quite categorical on this aspect as per which the previous arrears of rent can only be recovered as a debt/actionable claim and not by way of the petition for arrears of rent. Therefore, petitioner herein is not entitled to claim the previous rent. The next question which falls for consideration is whether there was any assignment of rights in favour of the petitioner by the erstwhile landlord to realize the arrears of rent for the period August 2005 onwards. In the sale deed Ex.PW-1/4, I fail to find any such clause whereby the petitioner is entitled to recover the previous rent. Although, Ld,. Counsel for the petitioner pointed out that petitioner was accorded right to recover and realize the rent/dues from the respondent, however, in the absence of any express clause to this effect, petitioner cannot be said to have been assigned any such right. Judgment relied upon by the Ld. counsel for respondent in Sheikh Noor and Anr. Vs. Seikh GS Ibrahim by Lrs 2003 (7) (SCC) 321 can be looked into for reference.
The controversy has now boiled down to whether the legal notice dated 24.01.2007 Ex.PW-1/5 would loose its significance in so far as by way of this notice, petitioner has asked for the rent for the period August 2005 onwards for the recovery of which the petitioner was not legally entitled. In order to bolster the case of the petitioner on this aspect, Ld. Counsel for petitioner has relied upon judgment of Ashok Kumar Manilal Vs. Gandhi Vrajilal Gabrrulal Dessa, Gujarat High Court dated 08.02.1995, Lalshankar Mulji Joshi Vs. Kantilal Mohanlal Parikh And Anr, Bombay High Court dated 14.10.1971, Deepak Nijhawan and Anr. Vs. RN Abrol, Delhi High Court dated 23.12.2015, Raj Rani Vs. Gian Chand, Delhi High Court dated 25.02.1986.
Para no. 8 And 9 of the judgment in Raj Rani Vs. Gian Chand, Delhi High Court (supra) are relevant which is as follows:
No. 25942/16 Page no. 15 of 24 "8. The Learned Judge alluded to two Division Bench decisions of the Allahabad High Court Viz. Ram Pratap V. Sri Panna Lal, 1956 Allahabad Law Journal 787 and Manohar Lal and Another Vs. Bimal Kumar, 1955 Allahabad Law Journal 435, etc, in this context. These decisions were late on considered by B.C. Misra, J. in The Life Insurance Corporation of India Vs. The Standard Button Agency, 1972 Rej 199 and he found himself in perfect agreement with the statement of law laid down by H.R. Khanna, J. The Learned judge also adverted to a decision of the Supreme Court in Raghunath RavJi Dandekarj Vs. Anant Narayan Apte, Civil Appeal No. 387 of 1964 decided on 5th April, 1966, in which their Lordships had held that the mere fact that the mere fact that the amount given in the notice was incorrect was no ground for holding that the notice was bad and 80 the suit was not maintainable. His Lordship then added that: "The amount of arrears due is within special knowledge of the tenant and he has a duty to pay or deposit the rent monthly under sections 26 and 27 of the Rent Act. However, on receipt of a formal notice of demand, he must at his risk pay or tender the amount due in order to escape eviction upon breach of clause (a) of the proviso to sub section (1) of Section 14 of the Act. There is always a scope for genuine difference between the amounts claimed by the landlord and admitted by the tenant and the difference will have to be resolved by the Court but the mere fact that the amount mentioned in the notice is found to be incorrect is no ground for holding that the notice or legal proceedings following upon it are invalid."
"9. I am in respectful agreement with this statement of law. Indeed, another learned Judge of this Court (Sultan Singh, J.) has taken an extreme view of the matter saying that :"ACCORDING to Section 14 (1) (a) of DRC Act a landlord is only required to send a notice demanding arrears of rent and the tenant on receipt of notice is under a duty to pay or tender the whole of the arrears of rent legally recoverable from him within two months. The only duty cast upon the landlord is to send a notice demanding arrears of rent. The Clause (a) of the proviso to Section 14 (1) of the ACT does not require that No. 25942/16 Page no. 16 of 24 the notice of demand shall state the amount due from the tenant. A notice of demand may not mention the amount at all. It may simply ask the tenant to pay the arrears which he has not paid. As soon as a notice of demand is served, it is the duty of the tenant to pay such amount as he thinks is due from him and if ultimately it or found that the amount paid by the tenant was the correct amount, the landlord's petition for eviction will be dismissed. There can be no justification or the tenant to remain silent and not pay even the amount, which according to him is due and then to claim that the notice was invalid and he was not liable to eviction."
In the judgment titled as Deepak Nijhawan and Anr. Vs. RN Abrol, Delhi High Court dated 23.12.2015 para no. 27 is relevant which is as follows:
"27. In Daya Singh Vs. Bhagwan Singh and Sons & Ors, 12 (1976) DLT 305, the landlord served a notice on the tenant requiring payment of arrears of rent from September 1962 to October 1963. Since the same was not complied with, the landlord filed an eviction petition under section 14 (1) (a) of the DRC Act in 1969. The landlord filed an application before the Rent Controller requesting him to pass an order for payment of arrears which were legally recoverable. On that day, undisputedly, arrears only from 01.04.1969 were legally recoverable as the previous arrears were barred by time, and could not be recovered in a Court of law. The Controller allowed the application and repelled the contention of the tenant that the notice of demand had exhausted itself and was not available to constitute a good cause of action for passing an order under section 15 (1) of the DRC Act. The Tribunal reversed the decision of the Rent Controller on the premise that the notice of demand issued by the landlord did not claim arrears of rent legally recoverable in the petition, and could not form the basis of an order under section 15 (1) of the DRC Act. The landlord appealed to this court. This court held that the requirement of law is not that the landlord must demand only the legally recoverable arrears of rent. So far as the landlord is concerned, he is entitled to contend that a time barred rent is payable to him, and although his remedy to receive the same No. 25942/16 Page no. 17 of 24 may be barred, still his right to obtain the same remains infact- since limitation bars the remedy and does not (unless otherwise provided by law) extinguish the right. Reliance was placed on a Full Bench Judgment of the Punjab High Court in Rullia Ram Hakim Rai Vs. S. Fateh Singh, AIR 1962 Punjab 256. In this decision, the Punjab High Court held that the landlord could serve a notice demanding time barred rent as well, and the tenant in order to escape the eviction was bound to pay the whole of it. (The Learned Single Judge noticed the distinction with regard to recoverability of the arrears of rent in the DRC Act, by holding that the tenant is not required to pay anything more than what was legally recoverable). The relevant observations made by the Learned Single Judge in this decision read as follows:
"(6) Again there may be genuine and bona fide dispute between the landlord and tenant, e.g. Some amount may have been deposited by the tenant with the Controller under section 27 of the DRC Act, which the landlord may not have realised or known about, or the tenant my be entitled to some adjustment, i.e. under section 13 of the Act, or there may be some genuine dispute about the contractual rate of rent or the period for which it was due. Under the circumstances, to hold that the tenant can escape the fulfillment of his obligation to pay the rent by pointing out any technical default in the notice of the landlord would be to place a premium on a defaulting tenant and its result would be wholly undesirable. In Lalshankar Mulji Joshi Vs. Kantilal Mohanlal Parikh*, the Bombay High Court found that a notice could not be invalid merely because the rent had been demanded for the month for which it was not due. It was observed that it was well settled that a liberal construction should be put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of expiry of the notice; and that the test of its sufficiency was not what its contents would mean to a stranger ignorant of all the facts and circumstances touching the premises to which the notice purported to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances and No. 25942/16 Page no. 18 of 24 the mistakes should not be construed with a desire to find faults. In this decision the High Court purported to follow a decision of the Supreme Court in Raghunath Ravji Dandekar Vs. Anand Narayan Apte, decided on 05.04.1966 where their Lordships of the Supreme Court while considering the validity of a notice, which demanded Rs. 7,000.00 when actually, according to the courts below only Rs.6,900.00 were due observed that they were not able to understand how the notice of quit under the Transfer of Property Act would be bad because of a mistake or oversight in demanding more than was due under section 12 (2) of the Rent Act".
The golden thread in the above discussed judgments is that even if the notice which was sent to the tenant was in respect of arrears of rent which were not legally due from the tenant or tenant was not liable to pay the full amount as mentioned in the notice still if there is some liability regarding payment of rent by the tenant for some period, the entire notice will not ipso facto become invalid and tenant would be bound to pay the arrears of rent which according to him were due towards the landlord. On this premise, in the instant case although the legal notice Ex. PW-1/5 was in respect of arrears of rent since August 2005 and the petitioner became the owner of the property only in July 2006, respondent was incumbent upon to pay arrears of rent for the period July 2006 onwards to the petitioner, which is proved to have not been paid, therefore the notice Ex. PW-1/5 cannot be said to be invalid and respondent is held to be in arrears of rent from July 2006 onwards. The judgments relied upon by Ld. Counsel for respondent will not be of any assistance to him.
Another plinth of argument raised by Ld. Counsel for respondent is that the petition is not maintainable as it is in respect of partial eviction of the tenanted premises i.e. the first floor whereas respondent was also granted the roof rights at the time of inception of the tenancy. Ld. Counsel for the petitioner on the other hand has argued that the tenancy was only with respect to the first floor of the premises without any roof rights.
No. 25942/16 Page no. 19 of 24 Respondent has relied upon document of May 1976 which was executed by original owner/landlord Late Sh. P.V. Krishna Murthy as Ex. RW-1/1 and also the rent receipts as Ex. RW-1/2A to Ex. RW-1/2G. However, in his cross-examination Respondent/RW-1 has stated that he cannot comment about the contents of this document neither he could recognize the signature at point A and point A-1 on Ex. RW-1/1 nor he could tell whether Mr. P.V. Krishan Murthy had exhibited the said document. It is a settled legal proposition that mere exhibition of a document would not tantamount the proof of document. A document can be proved either by its author or by way of secondary evidence as envisaged in Indian Evidence Act, 1872. On the contrary, petitioner has relied upon rent receipts issued by erstwhile landlord Sh. Parveen Gupta and Sh. Ashok Gupta which clearly stipulate the tenancy to be of only first floor. The counter foils of these rent receipts Ex. PW-1/3 (colly 29 pages) were put to RW-1 who denied his signatures on the receipts but during further cross-examination of RW-1, certain other rent receipts Ex. RW-1/P-4 were put to him in regard to which he had admitted his signatures in suit bearing no. 221/06 which was filed by petitioner against the respondent. The certified copy of his cross-examination dated 23.11.2012 is Ex. RW-1/P-3. Respondent has very cleverly expressed his ignorance when confronted with these receipts. In his evidentiary affidavit Ex.RW-1/A, respondent has asserted that certain rent receipts in respect of the first floor of the premises were forged and tampered with and taking advantage of his illiteracy, forgery was committed. However, no evidence has been led by respondent to substantiate his plea. Moreover, from the submissions in his affidavit, it appears that respondent is not disputing his signatures on rent receipt but merely claiming that since he was illiterate and thus the contents of the receipts were not explained to him. Without any evidence in support thereof, this contention of the respondent is held to be untenable and unconvincing. Otherwise also, since respondent has admitted in his cross- examination that there is no room, bathroom or any other structure constructed on the roof of the first floor and only one water tank is kept on the roof, since the roof is a part of first floor, it would not be fatal to the case of the petitioner even if no relief has been No. 25942/16 Page no. 20 of 24 sought qua the roof separately. Thus, this contention for Ld. Counsel for respondent that the petition deserves to be jettisoned being in respect of partial tenancy does not pass any muster. Reliance is placed upon the judgment of High Court of Delhi tiled as Parvati Devi Vs. Mahender Singh, DOD 01.11.1995.
Another plinth of argument raised on behalf of the respondent is that the factum of the respondent being in arrears of rent since August 2005 has neither been mentioned in the pleading nor in the evidence, but only in the legal notice. This contention is completely ill founded and is an attempt on the part of the respondent to meander the case. The petition as well as evidentiary affidavit Ex. PW-1/A categorically speaks about respondent being in arrears of rent since August 2005.
Another contention raised is that the respondent was not informed about the purchase of the tenanted premises by the petitioner till the service of legal notice dated 24.01.2007. This argument is also fallacious in as much as there is no such suggestion in the cross- examination of PW-1. Neither is there any such pleading in the written statement or in the evidentiary affidavit of the respondent. Even otherwise this issue has already been dealt in detail in discussion on first ingredient of provision under section 14 (1) of DRC Act. Further, the contention of Ld. Counsel that the petitioner did not serve any notice under section 55 of Transfer of Property Act to the respondent. It is also not tenable in view of the discussion herein above.
Another objection raised on behalf of the respondent is that admittedly the rent for the month August 2005 has stood paid on behalf of the respondent. Therefore the petition as well as the legal notice ought to be dismissed. It is pertinent to note that para no. 18 of the petition provides that respondent was sent the notice for demand of rent for a period August 2005 onwards which would mean from September 2005. Even if it is assumed that in the legal notice Ex.PW-1/5 rent for August 2005 was also demanded from the No. 25942/16 Page no. 21 of 24 respondent, it would not make the legal notice invalid in view of the discussion in the preceding paragraphs and also in the light of the judgments relied thereon.
As regards the argument that in the legal notice Ex. PW-1/5, petitioner has sought to terminate the tenancy which is not permissible under section 14 (1)(a) of DRC Act, it is stated again in the light of the above discussed judgments that there is no prescribed form of the legal notice under section 14 (1)(a) of DRC Act. Even if there are some technicalities in the notice which do not go to the root of the matter, notice cannot be held to be invalid, if otherwise it contains all other stipulations as provided in section 14 (1)
(a) of DRC Act. Thus, this contention of the Ld. Counsel would also fall face down. Reliance is placed upon the judgment of Bombay High Court in Lalshankar Mulji Joshi Vs. Kantilal Mohan Lal Parikh and Anr., DOD 14.10.1971, which was filed on record by Ld. Counsel for petitioner. Para no. 6 is relevant which is as follows:
"6. It is now well- settled that a liberal construction is put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of the expiry of the notice; and that the test of its sufficiency is not what its contents would mean to a stranger ignorant of all the facts ans circumstances touching the premises to which the notice purports to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances and the mistakes, if any, should not be construed with desire to find faults, but they should be construed liberally. In the instant case it appears that the petitioner-landlord was under a mistaken belief while asking for rent for the period from 15.08.1965 to 15.09.1965. It is not that he meant that the rent would not be due to him on 15.09.1965. it may be that he remained under a wrong impression and thought that he could demand such rent since he was terminating the tenancy on and from 15.09.1965. In my view, therefore, this appears to be a mistake on the part of the petitioner committed while giving the notice. The Supreme Court in Civil Appeal No. 387 of 1964, decided on 05.04.1966, while considering validity of a notice, which demanded Rs. 7,000/- when No. 25942/16 Page no. 22 of 24 actually, according to the courts below only Rs. 6900/- were due, observed that they were not able to understand how the notice to quit under the Transfer of Property Act Will be bad because of a mistake or oversight in demanding more than was due under section 12 (2) of the Rent Act. Their Lordships held that all that Section 12 (2) of the Rent Act, requires is the notice by the lessor for payment of arrears of rent. Their Lordships further observed that it was true that such a notice shall contain the figure of the amount due as arrears of rent, but according to their Lordships, if there was a mistake in the amount specified, in the notice, that did not, in their opinion, make the notice under section 12 (2) bad or because of that mistake the notice to quit under the Transfer of Property Act bad. It appears to me that simply because my mistake or oversight the landlord had demanded the rent for the month for which it was not due, that would certainly not make the notice invalid. The view taken by the learned Assistant Judge is therefore not correct".
(iv) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
Petitioner has deposed in her affidavit Ex. PW-1/A that despite service of legal demand notice dated 24.01.2007 Ex. PW-1/5 calling upon respondent to pay the arrears of rent since August 2005, he failed to pay the amount. Respondent on the other hand has claimed that there was no arrear due and he has been regularly paying the rent to the erstwhile landlords and thereafter to the petitioner. However, it is not the case of the respondent that he has paid or tendered any rent to the petitioner after service of legal demand notice Ex. PW-1/5. Thus, this ingredient also stands established.
Conclusion:
In the light of the above discussion, it is though held that the petitioner has not been successful in proving her case against the respondent qua section 14 (1) (f) and (j) of DRC Act. However, petitioner has successfully proved that respondent was in arrears of No. 25942/16 Page no. 23 of 24 rent for the period July 2006 onwards. Thus, the respondent is held to be in default in payment of arrears of rent for the period July 2006 onwards and when the legal demand notice dated 24.01.2007 was served upon him under section 14 (1) (a) of DRC Act, he failed to clear the arrears despite service of notice. Petition is thus partly allowed. Respondent is thus directed to deposit the arrears of rent with effect from July 2006 onwards till the date of the order @ Rs. 340/- per month alongwith statutory interest of 15 % per annum. Amount deposited under section 15 (1) of DRC Act to be adjusted.
As regards the granting of benefit under section 14 (2) of DRC Act, let separate case file be maintained and respondent is granted liberty to prove that he has complied with the directions of the court issued under section 15 (1) of DRC Act vide order dated 16.01.2008. Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2018.04.12 16:33:33 +0530 Announced in the open court on (NAVJEET BUDHIRAJA) 11.04.2018 ACJ/CCJ/ARC(W)/11.04.2018 This judgment contains 24 pages and each page has been signed by me.Digitally signed by
NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2018.04.12
16:33:43 +0530
(NAVJEET BUDHIRAJA)
ACJ/CCJ/ARC(W)/11.04.2018
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