Delhi District Court
) Shri Ghansham Dass Choudhary vs Sh. Subhash Chander on 22 March, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT appeal No. 35/2011
Unique ID No. 0240IC0160412011
1) Shri Ghansham Dass Choudhary,
s/o. Shri Nemi Chand,
r/o. 4953/42 Bharat Ram Road,
Darya Ganj, New Delhi.
2) Smt. Mohini Chaudhary,
w/o. Shri Kunj Behari,
r/o. 4953/42 Bharat Ram Road,
Darya Ganj, New Delhi ............. Appellants
Versus
Sh. Subhash Chander,
s/o. Late Shri Bhagwan Dass,
r/o. H.No.4224/1, Ansari Road,
Darya Ganj, New Delhi. ........Respondent
Date of institution of appeal : 07.04.2011
Date when final arguments were heard: 06.03.2012
Date of pronouncement of judgment : 22.03.2012.
JUDGEMENT :-
Feeling aggrieved by and dissatisfied with the judgement and decree dated 3-3-2011 passed by Shri Pritam Singh, Additional Rent Controller (Central), Delhi, present appeal under Section 38 of the Delhi Rent Control Act (hereinafter referred to as "the Act") has been filed by the appellant.
2- Before going to the grounds of appeal, it will be in the fitness of things to narrate succinctly the facts giving (RCT Appeal No.35/2011) (Page 1 of 40) rise to the present appeal.
3- Petitioner (respondent herein) had filed an eviction petition against the respondents (appellants herein) under section 14(1)(a), (d) & (h) of DRC Act inter-alia on the allegations that premises comprising of three rooms, kitchen, latrine, bath room, varandah and a store on the ground floor of the premises No.4953/42, Bharat Ram Road, Darya Ganj, New Delhi was let out to the respondents w.e.f. 1-5-1975 by virtue of a rent agreement. It was alleged that rent is @ Rs.182 per month exclusive of other charges. Respondents have neither tendered nor paid arrears of rent w.e.f. 1-4-1999 at the said rate inspite of repeated request, demands and a legal notice dated 10-6-2002 which was duly served on the respondents. It was further alleged that premises were let out to the respondents for use as residence and neither they nor any member of their family has been residing therein for a period of more than six months immediately before the date of giving notice dated 10-6-2002. Respondents have before or after commencement of DRC Act acquired vacant possession or been allotted a residence at B-2/2, Rana Partap Bagh, Delhi and flat No.608, Manish Tower, Manish Nagar, Char Bangla, JP Road, Andheri (West), Mumbai. As such, eviction of the respondents was sought on the aforesaid grounds.
3. Eviction petition was contested by both the respondents who filed a joint written statement, wherein (RCT Appeal No.35/2011) (Page 2 of 40) it was submitted that premises in question were let out by the mother of the petitioner on 1-5-1975 at monthly rent of Rs.100/- per month for residential cum commercial purposes, vide agreement dated 28-4-1975. In the said agreement it was categorically stated that the respondent could acquire sales tax number in the said premises and the landlady would not have any objection. The appellants/respondents acquired sales tax number in the said premises in the name of his firm M/s Choudhary Gems w.e.f. 29-4-1978 and thereafter respondents shifted the said firm from the suit premises. In the year 2000 the respondents floated another firm by the name of M/s Krishna Export and acquired Central Sales Tax and Delhi Sales Tax number on 31-8-2000 and ever since then, the respondents are running business in the name and style of the said firm from the suit premises. However, after death of Smt. Savitri Devi, the respondent attorned to the petitioner and the petitioner became the landlord and duly issued the valid rent receipts in favour of the respondents/ tenants thereafter. It was admitted that respondents are the tenant in the suit premises at the rate of Rs.182/- per month exclusive of other charges. Service of legal notice dated 10-6-2002 was admitted. However, it was denied that respondents have neither tendered nor paid arrears of rent w.e.f. 1-4-1999 at the said rate despite repeated request, demand and legal notice. It is stated that respondents have been regularly paying rent to the petitioner annually and petitioner has (RCT Appeal No.35/2011) (Page 3 of 40) been issuing receipts of the same to the respondents. The respondents have already paid rent upto 31-3-2000 way back on 22-2-2000, for which the petitioner has already issued receipt No.874. Hence, rent for the year 2000 was paid in advance well before 31-3-2000. It was submitted that rent for the subsequent period was also tendered by the respondent on several occasions to the petitioner. However, the petitioner refused to accept the same. Lastly on 6-6-2000 respondent sent money order to the petitioner for Rs.4368/- being rent of the demised premises for the period 1-4-2000 to 31-3-2002 @ Rs. 182/- per month, which money order the petitioner categorically refused to accept. After service of notice of demand dated 10-6-2002, respondent once again tendered arrears of rent within the statutory period. It was denied that premises were let out purely for residential purposes or that neither the respondents nor any member of their family has been residing therein for a continuous period of more than 6 months from the date of giving notice dated 10-6-2002. Respondents are continuously residing in the demised premises and are also running business and they are regularly paying electricity and water bills of the said premises and firm is also having a valid CST number from the said premises. Respondents are also filing income tax returns, carrying out all the business activities from the suit premises. It was further submitted that respondents are permanent residents of suit premises. Sons of respondents No.1 and 2 (RCT Appeal No.35/2011) (Page 4 of 40) respectively reside at the addresses given in the plaint to whom they often go to meet . It was denied that respondents have acquired possession or have been alloted the residence at B-3/2 Rana Partap Bagh, Delhi and Flat at Mumbai. As such it was submitted that petition being not maintainable is liable to be dismissed. 4- Petitioner filed replication wherein he denied allegations made in the written statement and reiterated the stand taken in the main petition. It was denied that premises were let out for residential cum commercial purpose. It was submitted that premises were given purely for residential purpose and on the request of the respondents, petitioner only allowed respondents to have sales tax number from the suit premises but they were never allowed to use premises for non residential purposes, because the respondent is having his shop at 1073, Maliwara, Delhi -6 where he is working in the name and style of M/s Choudhary Gems. It was admitted that the respondent has paid rent upto 31-3-2000 vide rent receipt No.874. It was, however, denied that rent was subsequently tendered by the respondents on several occasion which the petitioner refused to accept. It was also denied that on 6-6-2002 respondents sent a Money order to the petitioner for a sum of Rs.4368/- for the period from 1-4-2000 to 31-3-2002 @ Rs.182 per month, or that the petitioner refused to accept the same. 5- In order to substantiate his case, the petitioner examined himself as PW 1. Besides that he examined (RCT Appeal No.35/2011) (Page 5 of 40) PW 2 Bhola Ram from Delhi Jal Board and PW 3 SP Sharma from BSES Yamuna Power Ltd. On the other hand, respondent No.1 examined himself in support of his case.
6- After hearing learned counsel for the parties, learned ARC came to the conclusion that petitioner succeeded in proving all the grounds of eviction. As such, eviction order was passed under Section 14(1)(d) and (h) in respect of the suit premises. This order has been challenged by the respondent (appellants herein) by filing the present appeal.
7- Notice of the appeal was given to the respondent and the trial court record was summoned.
8- I have heard Shri V.P.Sharma, Advocate, duly assisted by Shri K.K.Aggarwal, Advocate for the appellants and Shri B.P.Dhalla, Advocate for the respondent at great length and have perused the written submissions filed by the appellants and have perused the records carefully.
9- I shall take each of the grounds one by one. Ground u/section 14(1)(a) of DRC Act :-
10- It was submitted by the learned counsel for the appellants that in the grounds taken in para 18(a) of the petition, petitioner had stated that respondents (appellants herein) are in arrears of rent w.e.f. 1-4-1999 and have not tendered or paid the same despite demand notice dated 10-6-2002. However, after a plea taken by the appellant that rent stands paid upto 31-3-2000, same (RCT Appeal No.35/2011) (Page 6 of 40) was admitted by the respondent/ landlord. There is no dispute that rent was being tendered and paid by the appellants/tenants to the landlord annually for the accounting year starting on1st April and ending on 31st March every year. This facts stands proved from rent receipts Ex.RW1/3 to Ex.PW1/5. The respondents tendered rent/arrears of rent upto 31-3-2002 firstly on 6-6-2002 when a money order was sent to the petitioner for the period from 1-2-2000 to 31-3-2002 which was refused by the petitioner and thereafter when demand notice was sent, at that time also rent was sent through money order which was again refused by the petitioner. As such, after service of demand notice within statutory period of two months, rent was duly tendered to the landlord but in order to involve tenant into false and baseless litigation, he refused to receive the same. Thereafter rent was deposited under Section 27 of DRC Act. Deposit of rent could not be proved due to non receipt of Goshwara Number. However, an application was subsequently made under Order 18 rule 17 CPC for proving the same but the application was dismissed, vide order dated 20-8-2010. It was submitted that in this appeal also, appellants are fully competent to assail the order dated 20-8-2010 passed by learned ARC and as such it is a fit case that the impugned order be set aside and case be remanded back for evidence by way of summoning judicial file. There is another illegality in the order passed by learned ARC inasmuch as, learned (RCT Appeal No.35/2011) (Page 7 of 40) ARC has simply allowed the petition under Section 14(1)
(a) without realising that it was incumbent upon him to grant benefit under Section 14(2) of DRC Act and learned ARC could not have straightaway passed the order of eviction under Section 14(1)(a) since it was a case of first default.
11- Rebutting the submissions of learned Counsel for the Appellant, it was submitted by the learned Counsel for the respondent that rent was not paid annually and it was only for the last two - three years that appellant paid rent annually, otherwise, he has given details showing that rent used to be paid monthly or sometimes for two - three months together. As regards the submissions that the landlord refused to receive rent when tendered to him, same was denied and it was submitted that the appellant has failed to prove money order receipt vide which the landlord is alleged to have refused rent. Moreover, mere tender of rent was not sufficient. It was incumbent upon tenants to deposit rent under Section 27 of the Act, which they have failed to prove. Under the circumstances, it was submitted that there is no infirmity in the findings of learned ARC which calls for interference.
12- Needless to say, when an eviction petition is filed under Section 14(1)(a) of the Act, it is incumbent upon the landlord to prove following essential ingredients :-
a) relationship of landlord and tenant between the parties;
b) arrears of rent in respect of suit premises;
(RCT Appeal No.35/2011) (Page 8 of 40)
c) Service of notice of demand; and
d) failure on the part of tenant to tender or pay the rent to the landlord within two months of the receipt of notice of demand 13- Turning to the case in hand, (i) there is no dispute regarding relationship of landlord and tenant between the parties inasmuch as it is undisputed case of the parties that premises in question were let out by the mother of the petitioner to the appellants by virtue of rent agreement. After the death of the mother, the petitioner started realising rent and therefore, admittedly there existed relationship of landlord and tenant between the parties. (ii) there is no dispute about rate of rent. As per rent agreement, initially rent of the suit premises was Rs.
100/- per month. Thereafter, it was increased from time to time. At the time of institution of petition, rent of the suit premises was Rs.182/- per month. (iii) it is also not in dispute that before filing eviction petition, a legal notice of demand dated 10-6-2002 was sent to the respondents which was duly received by them. (iv) As regards arrears of rent, although in the petition, arrears were claimed w.e.f. 01.04.1999 but in replication, it was admitted that rent upto 31-3-2000 stands paid to the petitioner. (v) It is also not in dispute that either prior to or after filing of the eviction petition, rent thereafter was not paid.
14- Only question for consideration is whether after the service of notice of demand and before filing of (RCT Appeal No.35/2011) (Page 9 of 40) eviction petition, rent w.e.f. 1-4-2000 was tendered to the petitioner or not. In this regard it is the case of the appellants (tenants) that rent for the period 1-4-2000 to 31-3-2002 was tendered to the petitioner who, refused to accept the same. As such, a money order was sent for a sum of Rs.4368/- on 6-6-2002. which the petitioner refused to accept. After service of notice of demand also, rent was again tendered within statutory period which the petitioner refused to receive. However, the petitioner (respondent herein ) has denied tendering of rent by the appellants for this period or his refusal to receive the money order. So, the question for consideration is whether the appellants had defaulted in payment of rent or not.
15- In order to decide this question, it will be appropriate to reproduce Section 14(1)(a) read with Section 14(2), Section 15(1), Section 26, Section 27 and Section 28 of the Act so far as these are material to the disposal of instant appeal. Same are reproduced hereunder :-
"14 Protection of tenant against eviction-
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of (RCT Appeal No.35/2011) (Page 10 of 40) possession of the premises on one or more of the following grounds only, namely:-
(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a landlord in the manner provided in section 106 of the Transfers of Property Act, 1882 (4 of 1882);
"14.(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub- section (1) if the tenant makes payment or deposit as required by Section 15:
Provided that no tenant shall be entitled to the benefit under this sub-section if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months."
Section 15 of the Act reads as under:
"15. When a tenant can get the benefit of protection against eviction-
(1) In every proceedings for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-
section (1) of Section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit it made and to continue to pay or deposit , month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate.
(RCT Appeal No.35/2011) (Page 11 of 40) 16- Chapter III deals with control of eviction of tenants. Section 14 gives a specific right to the tenants to resist evictions. Sub-section (2) of Section 14 of the Act provides that no order for recovery of possession of any premises shall be made on the grounds specified in clause
(a) of the proviso to Sub-section(1) if the tenant makes payment or deposits the rent as required by Section 15. An overall reading of Chapter III of the Act would clearly show that an additional protection has been given by the legislature to the tenant who has committed default in payment of rent for which he is liable to be evicted under section 14(1)(a) of the Act. Section 14(1)(a) of the Act clearly provides that when the tenant has neither paid nor tendered whole of the arrears of the rent legally recoverable from him within two months from the date of which a notice of payment of the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882, then he is liable for eviction. A plain reading of sub-section (2) of Section 14 makes it clear that a tenant is protected from eviction if he makes payment or deposits the rent as required by Section 15. Section 15 deals with cases when a tenant can get the benefit of protection against eviction. 17- Chapter IV, however, deals with deposit of rent. Section 26 of the Act so far as is material for the present purpose reads as under:
"26. Receipt to be given for rent paid. -
(1) Every tenant shall pay rent within the (RCT Appeal No.35/2011) (Page 12 of 40) time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen per cent per annum from the date on which such payment is due to the date on which it is paid.
(2) Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid to him, signed by the landlord or his authorised agent:
Provided that it shall be open to the tenant to remit the rent to his landlord by postal money order.
(3) xxx xxx xxx xxx xxx"
18- Section 27 deals with deposit of rent by the tenant. It clearly says that:-
"27. Deposit of rent by the tenant- (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:"
xxxxxxx xxxxxxx xxxxxxx Section 28 prescribes for time limit of making deposit and consequence of incorrect particulars in (RCT Appeal No.35/2011) (Page 13 of 40) application for deposit. --
(1) No rent deposited under Section 27 shall be considered to have been validly deposited under that section, unless the deposit is made within twenty-one days of the time referred to in section 26 for payment of the rent.
(2) xxx xxx xxx (3) xxx xxx xxx"
19- Perusal of the aforesaid provisions goes to show that as per Section 26 of the Act, it is incumbent upon the tenant to pay rent within the time fixed by the contract and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Section 27 of the Act contemplates the contingencies when the landlord refuses to accept rent tendered by tenant. In that eventuality, it is incumbent upon tenant to deposit rent under Section 27 of the Act. However, Section 28 of the Act stipulates that in order to make deposit of rent under Section 27 a valid one, it is to be deposited within 21 days of the time referred to in Section 26 of the payment of rent. Although the word "may" has been used in Section 27 of the DRC Act, but Hon'ble Supreme Court in Sarla Goel and others Vs. Kishan Chand, (2009) 7 SCC 658 observed that Section 27 of the DRC Act provides a procedure as to how rent can be deposited if it was refused to have been received by landlord. The procedure has to be strictly followed and the word "may" used in this Section is to be read as (RCT Appeal No.35/2011) (Page 14 of 40) "shall" and it is to be construed that it is a mandatory provision and not directory. It was observed that :-
".......Taking into consideration the object of the Act and the intention of the legislature and in view of the discussions made hereinearlier, we are of the view that the word "may" occurring in Section 27 of the Act must be construed as a mandatory provision and not a directory provision as the word "may", in our view, was used by the legislature to mean that the procedure given in those provisions must be strictly followed as the special protection has been given to the tenant from eviction. Such a canon of construction is certainly warranted because otherwise intention of the legislature would be defeated and the class of landlords, for whom also, the beneficial provisions have been made for recovery of possession from the tenants on certain grounds, will stand deprived of them."
It was observed that whenever the landlord refuses to accept rent tendered by tenant within time referred to in Section 26 of the Act, it is the duty of the tenant to deposit such rent before the Rent Controller as prescribed under Section 27 of the Act.
20- Turning to the case in hand, according to the appellants, rent was to be paid annually and in order to fortify this plea, three rent receipts Ex.RW1/3 to Ex.RW1/5 were placed on record. This fact was disputed during the course of arguments and statement of account was filed in order to show that rent used to be paid monthly or sometimes for 2- 3 months together except for three rent receipts whereby rent was paid annually.
(RCT Appeal No.35/2011) (Page 15 of 40) Moreover, this plea that rent used to be paid annually is belied by rent agreement Ex.PW1/1 wherein it was clearly stipulated that rent was to be paid every month. It is settled principle of law that where an agreement between the parties is in writing, no oral evidence about variation of its terms is permissible. For holding this view, I am fortified by the decision in 1986 RLR 66, Badri Dass Vs. AGFR Sons Cooperative Stores. 21- Even assuming for the sake of arguments that as per three recent receipts Ex.RW1/3 to Ex.RW1/5, rent was to be paid annually, then also as per the case of the appellants themselves, rent for the period 1-4-2000 to 31-3-2002 was paid only on 06.06.2002. As per his own version, rent for the period from 1-4-2000 to 31-3-2001 was required to be paid on or before 31-3-2001. However, there is no averments that during this period, any rent was ever tendered to the landlord or he refused to receive the same. It is the specific case of the tenants/appellants that rent for the period 1-4-2000 to 31-3-2002 was tendered to the landlord who refused to receive the same and thereafter money order was sent on 6-6-2002, which he refused to receive. Respondent/ petitioner has denied receipt of any such money order or its refusal by him. The money order coupon was not proved by the appellants. Furthermore, after service of notice of demand dated 10-6-2002, the tenants./appellants claims to have tendered rent to the petitioner. However, it is alleged that the petitioner (RCT Appeal No.35/2011) (Page 16 of 40) refused to receive the same. Even this fact has been denied by the petitioner. In the written statement, there is no averment that after refusal by the landlord/petitioner to receive rent for this period, any attempt was made by them to send rent through money order or on his refusal, same was deposited before the Rent Controller as contemplated under Section 27 of the Act. 22- Much emphasis was laid by learned counsel for the appellants for submitting that rent was subsequently deposited under Section 27 of the Act, by filing DR petition No.79/2003 and although initially the tenant could not prove the same but later on he moved application under Order 18 rule 17 CPC for summoning the record and proving the same but the application was dismissed vide order dated 20-8-2010. Admittedly, order dated 20-8-2010 was never challenged by the tenant, by filing any appeal. However, it was submitted by learned Counsel for the appellant that this order can even be challenged during the course of present appeal. Without going into the question whether the said order can now be challenged in the present appeal or not, it is suffice to say that even if it is taken that certified copies of the documents which have been filed by the appellants pertaining to DR case No.79/2003 be now considered, even then the appellants have no case inasmuch as, even assuming the case of the appellants that rent was payable annually, then it was to be paid on or before 31-3-2001, which was not done. It was according to the appellants, (RCT Appeal No.35/2011) (Page 17 of 40) petitioner refused to receive the money order, then there is nothing to show that rent was deposited under Section 27 of the DRC Act. Things did not end here. Even after receipt of legal notice of demand, the only plea taken in written statement is that once again respondent tendered the arrears of rent within the statutory period as envisaged under law. It is not even alleged that petitioner refused to receive the same or that thereafter it was sent by money order or deposited under Section 27 of the DRC Act. Even when respondent appeared in witness box, he nowhere deposed that petitioner refused to receive rent when tendered. It is alleged that respondent deposited the rent from 1.4.2000 in the competent Court under Section 27 of DRC Act vide DR No.79 of 2003. Since, the legal notice of demand is dated 10.6.2002, deposit under Section 27 of DRC Act was to be made within two months. The same has been done only in the year 2003, therefore, even otherwise it was not a valid deposit.
23- Considering from any angle, the appellants have failed to prove that they had paid or tendered arrears of rent within two months from the service of notice of demand. As such, Addl. Rent Controller rightly came to the conclusion that the landlord has succeeded in making out a case under Section 14(1) (a) of the Act. 24- As regards the submissions that there is illegality in the order passed by the Addl. Rent Controller inasmuch as he has simply allowed petition under (RCT Appeal No.35/2011) (Page 18 of 40) Section 14(1)(a) without realising the fact it was incumbent upon him to grant the appellants benefit under Section 14(2) of the Act, which is permissible under law and the learned Addl. Rent Controller could not have straight away passed order of eviction under Section 14(1)(a) of the Act, as it was a case of first default, this submission is belied from the record inasmuch as perusal of the trial court record goes to show that since eviction petition was filed on three grounds, viz. 14(1)(a),(d) &
(h) of the Act, while pronouncing order on 3.3.2011 it was observed that petition under Section 14(1)(a),(d) &
(h) is allowed but eviction order was passed only under Section 14(1)(d) & (h) of the Act against the tenants in respect of the suit premises. Order-sheet dated 03.03.2011 is relevant and is reproduced hereunder:
"03.03.2011.
Present: Petitioner in person.
None for the respondent.
The petition u/s. 14(1)(a),(d) and (h) is allowed vide separate judgment dated 03.03.2011. An eviction order is passed under Section 14(1) (d) & (h) of DRC Act. So far the section 14(1)(a) of DRC Act is concerned, as this is a case of first default, put up for consideration under Section 14(2) of DRC Act whether the respondents have complied the order dated 21.05.2003 passed under Section 15(1) of DRC Act.
Put up for Nazir report for 25.03.2011. ................"
Under the circumstances, learned Addl. Rent Controller was conscious of the fact that since it was a case of first (RCT Appeal No.35/2011) (Page 19 of 40) default, therefore, it was yet to be considered whether tenants were entitled to the benefit under Section 14(2) of the Act. That being so, he has called for the report of the Nazir and matter was adjourned for consideration on this point for a subsequent date. Therefore, this submission of the learned Counsel for the appellants is without any merits.
25- Result of the aforesaid discussion is that the findings of Ld. Trial Court under Section 14(1)(a) of the Act, do not suffer from any infirmity which calls for interference.
Ground u/section 14(1)(d) of DRC Act :-
26- The petitioner/landlord also sought eviction of the appellants on the ground that the premises was let out to the respondents for use as residence and neither they nor any member of their family has been residing in the premises for a period of six months immediately before the date of giving legal notice dated 10-6-2002. 27- It was submitted by learned Counsel for appellants that this ground of eviction suffers from misconception and is against the principle of law, inasmuch as it is necessary for the landlord to plead and prove that neither the tenant nor any member of his family has been residing in the tenanted premises for a period of six months "immediately before the date of filing application for recovery of possession". The period of six months is to be reckoned from the date of filing application for eviction and not from the date of service of notice. The (RCT Appeal No.35/2011) (Page 20 of 40) eviction petition was filed on 25-11-2002. As such it is necessary for the landlord to prove that neither tenant nor any member of their family is residing in the suit premises continuously from 25-5-2002 till 25-11-2002. Further in order to get an eviction order on this ground, it is necessary that the premises should have been let out for residential purpose alone. It was submitted that the appellant/tenant has taken a plea in the written statement that premises were let out for residential and non residential purpose. As such this ground is not available to the landlord. Reference was made to the rent agreement dated 28-4-1975, for contending that it clearly mentioned that although the premises are being let out for residential purposes but the tenants were at liberty to obtain sales tax number at the address of the suit premises, in case of need and landlord would have no objection to it. Subsequently, tenants acquired sales tax number in the name of their firm M/s Chaudhary Gems w.e.f. 29-7-78 and carried on the business of the firm from the said premises till it was shifted on 8-12-1982. Thereafter, in the year 2000 the tenants floated another firm by the name of M/s Krishna Exports and got CST and DST numbers for the said firm and carried on the business from the suit premises. Ample documentary evidence was led in this regard. It has been submitted that no firm can run at place other than at which it is registered. When permission was granted to the tenants to get sales tax number, landlord is presumed to have (RCT Appeal No.35/2011) (Page 21 of 40) known that tenants would be doing business at that very place. Appellants have been carrying on business at the suit premises and under the circumstances, premises were let out and used for residence cum commercial purpose. Even on merits, the landlord failed to prove the case, inasmuch as from the electricity bills it is clear that during the period between 25-5-2002 to 25-11-2002 there was consumption of 30 units of electricity, which means that the premises were being used by the tenants. Presence of tenant even for a day during the relevant six months would mean that there is no continuous absence and ground under Section 14(1)(d) is lost. As such, it was submitted that findings in this regard deserve to be set aside.
28- Per contra, it was submitted by learned Counsel for the respondent that as per rent agreement itself, premises were let out for residential purposes and were being used as such. Mere mention in the rent agreement that the tenant may get sales tax number from the suit premises, does not change the purpose of letting. Under the circumstances, premises were let out for residential purpose. By virtue of electricity and water bills, and other evidence, landlord had amply proved that neither the tenants nor any member of their family who residing in the suit premises. Only respondent No.1 entered in the witness box. Respondent no.2 even did not bother to enter witness box to rebut the case of the landlord that either she or any member of her family was residing in (RCT Appeal No.35/2011) (Page 22 of 40) the suit premises. As such, it was submitted that there is no infirmity even in this findings of learned ARC, which calls for interference.
29- Needless to say that when the eviction petition is filed on the ground under Section 14(1)(d) of the Act, it is incumbent upon the landlord to prove that :-
a) Premises have been let out for residential purpose.
b) Neither the tenant nor any member of his family has been residing therein for a period of more than six months immediately before filing of the eviction petition.
30- One of the basic bone of contention between the parties is in regard to purpose of letting, inasmuch as according to the petitioner, premises was let out for residential purpose, whereas according to the appellant/ respondent it was let out for a composite purpose, i.e. residential cum commercial purpose. It is not in dispute that premises was let out by the mother of the petitioner by virtue of rent agreement and it will in the fitness of things to reproduce hereunder relevant portion of the rent agreement :-
"We, Ghanshyam Chaudhary s/o.
Shri Nemi Chand,Smt. Mohini Chaudhary wife of Shri Kunj Behari, are residents of 2126, Dhobi Wara, Kinary Bazar, Delhi.
Whereas we have taken on rent a flat on the ground floor comrising of three rooms, latrine, kitchen, bath, varandah, courteyard, store and staircase, in the (RCT Appeal No.35/2011) (Page 23 of 40) property bearing No.4953/42, Bharat Ram Road, Darya Ganj, Delhi from the landlady Smt. Savitri Devi wife of late Shri Bhagwandass resident of 4224/1, Ansari Road, Darya Ganj, Delhi w.e.f. 1st May, 1975 at monthly rent of Rs.100/- for residence. Possession of the aforesaid portion has been taken and we shall abide by the following terms :-
1)..............................
2)...............................
3) That if we need to get Sales Tax number, then we may get from the address of the tenanted premises and the landlady will have no objection. ........
4) .......................
31- The opening and governing part of the relevant clause of rent agreement is couched in mandatory form "the tenant has taken premises on rent for residence". In the succeeding terms and conditions , it was stipulated that in case there is any need to obtain sales tax number by the tenant, then the tenant will be at liberty to take the same from the address of the suit premises and the landlord will have no objection to the same. This is suggestive of the fact that incidental use of the tenanted premises for the purpose of obtaining only Sales Tax number was permitted by the landlord. Such incidental user is permissive and not purposive. M/s Precision Steel and Engineering Works Vs. Prem Deva Niranjan Deva Tayal, AIR 2003 SC 650 was a case where premises were let out to the tenant by virtue of a licence deed and licence deed stipulated that licencee shall use the premises for residence of their (RCT Appeal No.35/2011) (Page 24 of 40) Directors/Partners and Officers. The licencee, will, however, be free to use the said premises in part or in full also for office purpose, provided rules of the Local Authorities so permit. Eviction petition was filed under Section 14(1)(e) of DRC Act. At that time one of the essential ingredients to prove this ground of eviction was that premises should have been let out for residential purpose. The plea taken was that premises were let out for a mixed user. It was held by Hon'ble Supreme Court that :-
"The premises let out for residential purpose' should be construed liberally and not technically or narrowly; meaning thereby, where the premises are solely let for residential purposes they are undoubtedly covered by S.14(1)(e) but even when the premises are let out for composite or mixed purposes if the predominant or main purpose of letting is for residential purposes, the same would be included within the expression `the premises let for residential purposes'. An incidental, a secondary or unauthorised user of the premises for purposes other than residence would not take the premises out of the meaning of the expression `the premises let for residential purposes'.
Sita Nagpal and another Vs. Vinod Kumar Nijhawan , 1988(2) RCR (Rent) 3630 again was a case under Section 14(1)(e) of DRC Act and letting purpose was disputed as being only residential. In that case, plea taken was that tenant was also using the premises for (RCT Appeal No.35/2011) (Page 25 of 40) writing accounts books. It was observed by Hon'ble High Court that crucial question was whether premises has been used for any other purpose or not and if so, what was the extent of premises which have been used for said purpose. The tenant did not say that any particular portion of the demised premises had been exclusively earmarked for user for a purpose other than residential. The plea taken was that demised premises had been used for composite purpose from the very inception of the tenancy. Therefore, it was clear that every part of the demised premises had been used for residential purpose and some portion has been used for some purpose other than residential also. Dominant user of the premises was residential and therefore, it can not be concluded that premises were let out for composite purpose. 32- In V.S. Talwar Vs. Prem Chand, AIR 1985 SC 664 also, after taking note of the description of the premises given in the lease deed, coupled with the fact that no space was earmarked by the tenant for any personal office out of the accommodation, it was observed that dominant purpose being residential, it can not be said that premises were let out for composite purposes.
33- In view of these authoritative pronouncements, let us turn to the case in hand. A bare perusal of the rent agreement goes to show that description of the premises let out to the appellant was residential in nature. Rent deed also stipulated that premises were taken on rent for (RCT Appeal No.35/2011) (Page 26 of 40) residence. However, there was a stipulation that in case tenant requires to obtain sales tax number, then he can take the same from the address of the suit premises, to which landlord will have no objection. Mere fact that the landlord permitted the tenant/s (appellants) to obtain sales tax number from the address of the suit premises, does not mean that landlord also agreed to carrying out any commercial activities from the suit premises. Furthermore, at the time of taking premises on rent, it was only for residential purpose and this clause itself contemplates of a subsequent eventuality and record reveals that although the premises were taken on rent in the year 1975, however sales tax number in the name of firm M/s Chaudhary Gems was taken only w.e.f. 29-7-1978, i.e after expiry of approximately three years. Moreover, the appellants never intended to carry on the business of the firm from the suit premises, inasmuch as it was the case of the appellants themselves, business was shifted to another premises on 8-12-1982 and thereafter the appellants continued to use the premises for residential purpose. It was only in the year 2000 that they floated another company by the name of M/s Krishna Exports and got CST and DST numbers on 31-8-2000. All this go to show that dominant purpose was residential and it was only incidentally that appellants took the sales tax number initially in the name of M/s Chaudhary Gems and subsequently in the name of M/s Krishna Exports from the address of the suit (RCT Appeal No.35/2011) (Page 27 of 40) premises. There is nothing to show that any sales or purchase was carried out in the name of these firms from the address of the suit premises or any particular space was earmarked in the suit premises for the purpose of running business from the address of the suit premises. Documentary evidence placed on record by the appellants does not prove that any business was actually carried out by the appellants from the suit premises. Conduct of the appellants in taking sales tax number in the name of M/s Chaudhary Gems after lapse of three years and thereafter shifting the same in the year 1982 and thereafter again getting sales tax number in the name of another firm M/s Krishna Exports in the year 2000, is reflective of the intention of the appellants that premises were predominantly taken for residential purpose alone and it was only incidentally that sales tax number was taken from the address of the suit premises intermittently, which does not change the purpose of letting and thus it can not be said that purpose of letting was residential- cum-commercial. Furthermore, there is no evidence to show that any particular room of the suit premises, was earmarked for carrying on the business or that any transaction used to take place in that room or that any regular business of the company/firm was carried out, or that members of the public used to visit the building in order to purchase the products of the appellants' company. It was admitted by appellant no.1(RW1) in cross-examination that even electricity connection was (RCT Appeal No.35/2011) (Page 28 of 40) taken for "domestic purpose" Under the circumstances, learned Trial Court rightly came to the conclusion that premises were let out for residential purpose only. 34- Now coming to the submissions that ground of eviction suffers from misconception, inasmuch as it has been stated therein that neither tenant nor any member of his family has been residing in the suit premises for a period of six months immediately before the date of giving notice dated 10-6-2002, although this submission has force because as per Section 14(1)(d) of the Act, it is necessary for the landlord to plead and prove that neither tenant nor any member of his family has been residing in the suit premises for a period of six months immediately before filing of the application for recovery of possession. In fact for filing eviction petition on this ground, there is no requirement of giving any notice. However, that is not fatal. In S.B. Noronah v. Prem Kumari Khanna, AIR 1980 SC 193: 1979(2) RCR 455, Hon'ble Mr. Justice V.R. Krishna Iyeer, speeking for the bench has opined:
"Pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleading are construed. It is too plain for words that the petition for eviction referred to the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clear that law should not be stultified by Courts by sanctifying little omissions as fatal flaws. The (RCT Appeal No.35/2011) (Page 29 of 40) application for vacant possession suffered from no verbal lacunae and there was no need to amend at all. Parties win or lose on substantial question, not "technical tortures".
In Brigadier Pritam Pal Singh (Retd.) v. Shri V.P. Raman, 1981 (2) RCR 227, Hon'ble Supreme Court held that :-
It is necessary to bear in mind that the other principle that consideration of form cannot over ride the legitimate considerations and substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the pleas was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleading made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular mater was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it. The learned Judge after referring to a catena of authorities observed that the test is whether parties in spite of something missing in the pleadings go to trial with full knowledge of the issues involved and both parties lead (RCT Appeal No.35/2011) (Page 30 of 40) evidence in that behalf and there is no prejudice caused to either party, it would not prove fatal to the suit.
35- In view of the aforesaid authoritative pronouncements, it was rightly not stressed by learned Counsel for the Appellants that in view of the aforesaid discrepancy, the eviction petition is liable to be dismissed. In fact both the parties went on trial with full knowledge of the issues involved and also led evidence in that behalf. There is no prejudice to either of the parties. As such, crucial period for consideration is 25-5-2002 to 25-11-2002 in order to prove whether during this period appellants/tenants were residing in the suit premises or not.
36- In order to substantiate his case, the petitioner (respondent herein) examined himself as PW 1 and has deposed that the respondents (appellants herein) were not residing in the suit premises during the relevant period and there was no consumption of electricity or water. He has deposed that there was no consumption of electricity in Meter bearing No.4083871 installed in the premises from April, 2000 onwards. Same was the position of the Meter installed in the name of respondent No.2. He further deposed that respondent No.1 has also obtained another electricity meter which is also showing "no consumption". The respondents have neither deposited any electricity charges because they were not residing in the tenanted premises. He further deposed in (RCT Appeal No.35/2011) (Page 31 of 40) cross examination that the bill for the month of December, 2001` contains a consumption of 266 units and the bill for the month of February, 2002 shows 330 units. However, these are average bill, the meter is shown to be faulty.
37- Petitioner examined PW 2 Bhola Ram UDC from Delhi Jal Board who deposed that officials of DJB visited the premises bearing No.4953 and observed that premises were locked and vacant and there was no consumption of water in June, 2002 and in September, 2002. Same was the position in December, 2002 and in February, 2003 till November, 2003. He further deposed that in June, 2001meter was found locked and similar was the situation in September, 2001.
38- PW 3 SP Sharma, official from BSES Yamuna Power Ltd. deposed that bill pertaining to the period of March to May, 2002 shows consumption zero. Bill Ex.PW1/16 is the electricity bill pertaining to the period from 26-6-2002 to 23-8-2002 and shows consumption of 30 units. Bill Ex.PW1/17 for the period from 23-8-2002 to 29-10-2002 shows the consumption "zero". From the deposition of PW-3 and the electricity bill Ex.PW1/14, PW1/15, PW1/16, PW1/17, PW1/18 it is established that the consumption of electricity from March 2002 till November/December, 2002 was almost zero except the consumption of 30 units in Bill PW1/16 for the period from 26.06.2002 to 23.08.2002. Similarly, the consumption of electricity showing in bills PW1/35 to (RCT Appeal No.35/2011) (Page 32 of 40) PW1/40 regarding K. No.112028040033 and the consumption of electricity in bills PW1/25 to PW1/29 regarding connection 112028040093 (new number) is almost nil. Similarly from the deposition of PW-2 and the report Ex.PW2/1, it is established that there was no consumption of water from June, 2002 to December, 2002. The contentions of the appellants that they have made the payment of meter in December, 2002 and further made part payment of Rs.1,500/- for the period from April to December, 2002 and further payment made of Rs.1,450/- have no substance because all these payments were made only after receiving the legal notice PW1/2.
39- RW-1 has admitted in his cross examination that he has received the notice PW1/2 at B-3/2 Rana Pratap Bagh. RW-1 further deposed that he cannot admit or deny that respondent No.2 was served at Mumbai address. RW-1 deposed that it is not in his knowledge that he was served at 3/2 Rana Pratap Bagh address. RW-1 further deposed that respondent No.2 resided in Mumbai since 1975 to 2007 and since 2007 she is residing in Model Town. RW-1 further deposed that the invitation card of the wedding of his sons Ex.RW-1/P1 and Ex.RW-1/P2 do not bear the address of the suit property. He further admitted that the two telephone numbers given on the invitation card belongs to the Rana Partap Bagh address and in both the cards the address of his business premises i.e. A-1073, Maliwara has been (RCT Appeal No.35/2011) (Page 33 of 40) given and further admitted that he is running the business from the said address, i.e. Maliwara in the name of M/s. Choudhary Gems.
40. Much emphasis was laid on the fact that there was consumption of 30 units which would show presence of the appellant in the suit premises. In this regard it may be mentioned that if during the period from March, 2002 till November/December, 2002, consumption of 30 units was shown, this is highly negligible and from the same, it can not be said that the tenants resided in the suit premises. Moreover, it is the intention of the tenant to reside in the suit premises which has to be seen and other evidence coming on record clearly reflects that appellants/tenants did not reside in the suit premises during this period and even thereafter. Although subsequent bills placed on record are of not much relevance because they are beyond the stipulated period of six months, but further bills Ex.RW1/P-11 to Ex.RW1/P-20 go to show even subsequently consumption of electricity is either "zero" or 2 to 4 units. 41- Moreover, it was admitted by appellant No.1in his cross examination that notice Ex.PW1/2 was received by him at B-3/2, Rana Partap Bagh, Delhi. He admitted that invitation cards of the wedding of both his sons viz.Ex.RW1/P-1 and Ex.RW1/P-2 were not from the address of the suit premises but from Rana Partap Bagh address. Telephone number given on the marriage card also pertained to Rana Partap Bagh and in both these (RCT Appeal No.35/2011) (Page 34 of 40) cards, address of the business premises given as A-1073, Maliwara, Delhi.
42- As regards appellant No.2 is concerned, RW 1 could not admit or deny if she was served at the Mumbai address. It is pertinent to note that appellant no.2 did not bother to appear in the witness box in order to substantiate her case that she was also residing at the suit premises during the relevant period. In fact RW 1 admitted in his cross examination that respondent no.2 (appellant No.2 herein) resided in Mumbai since 1975 to 2007 and since 2007 she is residing in Model Town, Delhi. That being so, so far as appellant No.2 is concerned, it is the case of the appellants that neither she nor any member of her family has been residing was residing in the suit premises during the relevant period. As regards appellant No.1 (respondent No.1 before the trial Court), although he claims to be residing in the suit premises as well doing his business from the suit premises, but as per discussion held above, electricity bill and water bills for the period from February, 2002 to December, 2002 clearly established that the premises were not in use and occupation of the respondents/tenants. Question of residence is not a question of presumption but is a matter of fact. As observed by Hon'ble High Court in 49(1993) DLT 531, electricity bills are the best evidence to show that the demised premises have been in occupation of the tenant during the relevant six months. In Smt. Shakuntala (RCT Appeal No.35/2011) (Page 35 of 40) Bawa Vs. Ram Prasad and others, (1963) 65 PLR 103, it was observed that it is difficult to understand what sort of occupation of a house there can be when not even a light is switched on over a period of several months. Occupation means occupation in the sense of actual user." Non-consumption of electricity and water supply are reflective of the fact that premises were not in use and occupation of the appellants/tenants. Further conduct of the respondents coupled with the receipt of legal notice at Rana Partap Bagh's address and Mumbai and marriage cards containing the address of Rana Partap Bagh etc. are clinching evidence to prove that neither respondent No.1 nor any member of his family was residing in the suit premises during the relevant period. Admittedly, respondent no.2 was not residing in the suit premises since 1975. Under the circumstances, it was rightly observed by learned Addl. Rent Controller that the petitioner (landlord) succeeded in proving the ground under Section 14(1)(d) of the DRC Act.
Ground u/section 14(1)(h) of DRC Act :-
43- Section 14(1)(h) of DRC Act reads as under :-
"That the tenant has, whether before or after the commencement of this Act, acquired vacant possession of , or been allotted a residence."
44-. It is the case of the petitioner (landlord) that the respondent No.1 has acquired residential accommodation, i.e. B/2 Rana Partap Bagh, Delhi and respondent No.2 has also acquired premises in Mumbai.
(RCT Appeal No.35/2011) (Page 36 of 40) Respondents denied this fact. It was alleged by the tenant/s that property at R.P.Bagh was purchased by sons of respondent No.1 and not by him.
45- It was submitted by learned Counsel for the appellants that since the premises was let out for a composite use i.e. residential as well as commercial purpose, this clause under Section 14(1)(h) of DRC Act is not attracted. It has also been submitted that in order to attract provisions of Section 14(1)(h) of DRC Act, acquisition has to be in Delhi and therefore, acquisition of residence in Mumbai by respondent No.2 is of no consequence. Even as regards acquisition of residence by sons of respondent No.1, since same was not acquired by Respondent No.1, therefore same is also of no consequence. Reliance was placed on AIR 1987 SC 222 B.R. Mehta Vs. Smt.Atma Devi and others and 1970 RCR 71 Smt. Revti Devi Vs. Kishan Lal for contending that acquisition of another premises by the wife of the tenant was not considered to be acquisition by the tenant. 46- On the other hand, it was submitted by learned Counsel for the respondents that sons of appellant no. 1/tenant were merely carrying on business alongwith the father and in fact Flat at Rana Partap Bagh was purchased by respondent No.1 for the benefit of the family and therefore, in sum and substance it was an acquisition by the appellant no.1. Reliance was placed on 1987(2) RCR 482 Rup Chand Vs. Shanti Devi; AIR 1987 SC 2016 Ganpat Ram Sharma and others Vs. (RCT Appeal No.35/2011) (Page 37 of 40) Smt.Gayatri Devi and (2002) 3 SCC 299 Padmawati Devadatta Kamat and others Vs. Vijay Kumar Narayan Mehandale and another.
47- So far as appellant No.2 is concerned, it was submitted that it has come on record that she had a flat bearing no. 606, Manish Tower, Manish Nagar, Char Bangla, JP Road, Andheri (West), Mumbai and same has now been sold and thereafter she has started residing at Gujrawala Town, Delhi, which property is owned by her son and thus she has acquired another property at Delhi. Therefore, it was submitted that ground under Section 14(1)(h) is clearly made out.
48. As regards submission of the ld. counsel for the appellants that this ground is not attracted because the premises was let out for residence cum commercial purpose, in view of the discussion made above, it has been held that property was let out pre-dominantly for the purpose of "residence", therefore only question for consideration is whether the appellants/tenant acquired another accommodation.
49- Revti Devi (supra) and B.R. Mehta (supra) as relied upon by learned Counsel for the Appellants relate to the situation where wife of the tenant had acquired property. However, Padmawati Devadatta Kamat and others (supra) was the direct case where son of the tenant had acquired the Flat for the benefit of the entire family and it was held that that tantamounts to acquisition of flat by the tenant.
(RCT Appeal No.35/2011) (Page 38 of 40) 50- It is not in dispute that appellant No.1 has two sons and both his sons acquired residential accommodation i.e B/2, Rana Partap Bagh, Delhi. Sale deeds have also been placed on record. However, it is the case of appellant No.1 that this property was not acquired by him. It has come on record that his elder son was working with him in the business. Although it was alleged that younger son of the appellant No.1/tenant was working at Mumbai and was residing over there. However, no evidence was led to prove this fact. The fact that flats were purchased for the benefit of the family where entire family of appellant no.1 is residing, is clear from the fact that marriage of both the sons took place from Rana Partap Bagh's address. Electricity and water bills also go to show that appellant No.1 has not been residing in the suit premises, meaning thereby that he is residing with his family/sons at another accommodation. It is not his case that relation between his and his sons are not cordial. Under the circumstances, it is clear that flats were purchased for the benefit for entire family of appellant no.1 and therefore, ground under Section 14(1)(h) is clearly made out. 51- As regards appellant no.2 is concerned, acquisition of a flat in Mumbai would not attract Section 14(1)(h) because in order to attract provisions of this clause, the acquisition of accommodation has to be in Delhi only. However, it has come on record that after selling flat in Mumbai, appellant no.2 has shifted to the accommodation at Delhi and is living with his son in the (RCT Appeal No.35/2011) (Page 39 of 40) Gujrawala Town, which has been acquired by her son. Although, this subsequent event was not brought on record either by way of amendment of the petition or by moving application to bring on record subsequent events, but this fact can not be ignored. Even if it is assumed that acquisition of accommodation by appellant No.2 is not proved, since it is a case of joint tenancy and therefore, even if one of the joint tenants acquire other accommodation, then ground is proved. Therefore learned Addl. Rent Controller was right in coming to the conclusion that even this ground is made out. 48- In view of the aforesaid discussion, I hold that there is absolutely no infirmity or perversity in the impugned order passed by learned Addl. Rent Controller, which calls for interference. Under the circumstances, the appeal is hereby dismissed.
Let a copy of this order be sent to the trial court while returning the record.
Appeal file be consigned to record room.
Announced in open Court
on 22.03.2012 (SUNITA GUPTA )
Rent Control Tribunal: Delhi.
(RCT Appeal No.35/2011) (Page 40 of 40)