Delhi District Court
Ashok Kumar vs Mrs. Sarla Devi on 17 January, 2012
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C1185042008
RCT No. 32/2009 ( Old No. 271/08)
Ashok Kumar
S/o Late Govind Ram
R/o Shop No. 123,
New Rajinder Nagar,
New Delhi. ....Appellant
Versus
1. Mrs. Sarla Devi
Through Lrs
(a) Khushoo Rai Chandani (Son)
(b) Bhola Ram (Widower)
2. Sh. Lok Nath (Son)
S/o Shri Bhola Ram Raichandani
both R/o 13A/3, New Rajinder Nagar,
New Delhi. ....Respondents
Date of Institution : 14.11.2011
Arguments completed on : 16.01.2012
Date of Order : 17.01.2012
AND
Unique ID No. 02401C0559342009
RCT No. 134/09
RCT No. 32/09 1 of 10
2
1. Sh. Lok Nath (Son)
S/o Shri Bhola Ram Raichandani
2. Sh. Khushoo Rai Chandani
S/o Shri Bhola Ram
3. Sh. Bhola Ram
All R/o 7/43, First Floor,
Old Rajinder Nagar,
New Delhi. ...Appellants
Versus
Sh. Ashok Kumar
Proprietor of Ashoka Medical Store
Front Portion, Ground Floor,
Property No. 123, Shankar Market,
Shankar Road, New Rajinder Nagar,
New Delhi. ....Respondent
Date of Institution : 14.11.2011
Arguments completed on : 16.01.2012
Date of Order : 17.01.2012
ORDER
1. By this common order I shall be deciding two appeals bearing RCT No. 32/09 ( Old No. 271/08) titled as Ashok Kumar Versus Sarla Devi & others and RCT No. 134/09 titled as Lok Nath Sharma Versus Ashok Kumar as both the appeals arise out of same petition and relate to same RCT No. 32/09 2 of 10 3 premises. The parties are also same.
2. In appeal No. 32/09 the facts are that vide order dated 01.08.2008 the Ld. ARC held that ground u/s 14(1)
(a) was made out. Report of the Naib Nazir regarding compliance of earlier order u/s 15(1) DRC Act passed on 2.12.1999 was called for. The same led to passing of another order dated 9.11.2009 granting benefit u/s 14(2) DRC Act.
3. Against the first order the tenant has come in appeal whereas against second order the landlord has come in appeal. First I will take up the appeal against first order. The petition pertains to shop No. 123, Ground Floor, Shankar Market, Shankar Road, New Rajinder Nagar, New Delhi. The tenant was in arrears of rent since 1.10.1996 @ Rs. 375/- per month which he has not paid inspite of notice dated 12.12.1996. The relationship of landlord and tenant was not in dispute. The only plea of tenant was that initially the premises were let out to Shri Govind Ram, father of appellant. Subsequently the appellant ans his brother Anil were also made tenants by erstwhile landlady RCT No. 32/09 3 of 10 4 Laxmi Devi and tenancy was in the name of Ashoka Medical Store. Ashoka Medical Store or Govind Ram or Anil Kumar were not made parties and no notice was served on them.
4. RW-4 admitted in cross examination that he started sitting in the suit premises since 1975. Prior to that his father and appellant used to sit. Thus it can be safely inferred that it was the appellant who was the tenant.
5. Service of notice was also in dispute. The notice was sent by UPC Ex. AW1/11, by registered AD vide postal receipt Ex. AW1/12, notice was received back with the report of refusal which is Ex. AW1/13. From the same the Ld. ARC drew presumption u/s 27 General Clauses Act. There was no dispute regarding address mentioned on the registered cover.
6. I am in complete agreement with the approach adopted by Ld. ARC. UPC carries a presumption u/s 114 Evidence Act. This was so held by our own Hon'ble High Court in Prime Industries Vs Rafiq Ahmed 1997 Rajdhani Law Reporter 432. Registered cover also carries RCT No. 32/09 4 of 10 5 presumption u/s 27 General Clauses Act as per law laid down in Kanwal Raj Sadana Vs DD Sehgal 1996 (1) Rent Controller Reporter 84 and Maya Wati Versus CIT 157 (2009) DLT 324 DB.
7. The period in arrears was not in dispute. Appellant also pleaded that rent has been paid till 30.9.1996. According to him subsequent rent was sent by MO which was refused by the landlord. For that he examined the post man to prove the report as RW1/1 and postal receipt of MO as Ex. PW2/1 and 2. The question is whether mere sending of rent by MO is sufficient or whether the tenant was under obligation to deposit the same in court u/s 27 DRC Act. The said point is no more res integra in view of decision of Hon'ble Supreme Court in Sarla Goel Vs.Kishan Chand 2009 (2) Rent Control Reporter 115.
8. In appeal the grievance of the appellant is that Ld. ARC discussed that MO did not include interest. The interest was not demanded in notice. The counsel for the appellant submitted that as per decision of our own Hon'ble High Court in Mohd. Sayed Vs Model Press (P) Ltd. 167 RCT No. 32/09 5 of 10 6 (2010) DLT 505 non payment of interest can become actionable only on same being remanded in notice and remaining unpaid for two months. To that extent he appears to be correct.
9. The counsel for the respondent relied upon Raghbir Singh Vs Sheela Wanti 170 (2010) DLT 157 in which it was held that rent includes interest and eviction order passed by Ld. ARC was restored due to non payment of interest. In view of the law laid down in Mohd. Sayeed Supra the said authority does not help the respondent.
10. But in view of the findings given by me above that mere sending of Money Order was not sufficient, it is immaterial even if we exclude the observations regarding non inclusion of interest in the Money Order. There is no other infirmity in the order. The appeal fails and is dismissed.
11. Now coming to the second appeal, there were two or three small defaults by days only in complying with order u/s 15(1) DRC Act. The same were condoned by the Ld. ARC and benefit u/s 14(2) DRC Act was given. According RCT No. 32/09 6 of 10 7 to landlord the same should not have been condoned.
12. First let us examined the facts. Rent for June 2002 was deposited on 16.7.2002 and there was delay of one day. Rent of October 2004 was deposited on 17.11.2004 and there was delay of two days. Rent for January 2008 was deposited on 2.2.2008/28.2.2008. According to tenant it was deposited on 2.2.2008 whereas according to landlord it was deposited on 28.2.2008. The date was not legible on the challan. In any event it was late by 13 days at the most. The Ld. ARC found that in period of 8/9 years there are only two occasions when the deposit was not made in time.
13. The Ld. ARC distinguished decision relied upon by the landlord in Shobha David Vs Om Prakash Gulati & Anr. 157 (2009) DLT 611 on the ground that in the said case the tenant defaulted for three years.
14. The Ld. ARC relied upon Santosh Mehta Vs Om Prakash AIR 1980 SC 1664 and Ram Murti Vs Bhola Nath AIR 1984 SC 1392 in which it was held that Rent Controller has discretion to strike out the defence or not.
RCT No. 32/09 7 of 10 8 He also relied upon Kamla Devi Vs Vasdev AIR 1995 SC 985 and Jain Motor Car Company Vs Swayam Prabha Jain & Anr. (1996) 3 SCC 55 for the same purpose.
15. In Banarsi Dass Vs Bindra Ban Gupta 1998 IV AD Delhi 360 in which it was held that when the tenant has substantially complied with order, small/marginal delays must be condoned.
16. The counsel for the respondent /landlord relied upon Sanjay Kumar Saxena Vs. Meeta Goel 2005 Rajdhani Law Reporter 161 in which it was held that if the tenant does not offer any explanation at the time of depositing rent late and does not seek condonation, then no excuse is entertainable at final stage. Tenant cannot urge that lanlord omitting to apply U/s 15 (7) loses right to ask for eviction. In para 2 of the said judgment it has been mentioned that sometimes the tenant deposited rent of four months and sometime for five months and on previous occasions also there was delay on the part of the tenant to comply with the order U/s 15(1) of the Act. Hence the said decision is not applicable.
RCT No. 32/09 8 of 10 9
17. The counsel for the landlord also relied upon Swayam Prabha Vs. Jain M.C. Company 1982 Rajdhani Law Reporter 754. What was held in that case is that Section 15(1) consists of two parts, one regarding arrears and other regarding future monthly rent. Both parts are mandatory. If tenant complies with first part but delays deposit of future monthly rent he is liable to eviction. The same is not attracted in the present case.
18. The counsel for the landlord also relied upon Aero Traders Pvt. Ltd. Vs. Ravinder Kumar Suri 2005 Rajdhani Law Reporter 44 in which it was held when that controller orders tenant to pay or deposit and he fails, then in appeal the tribunal cannot grant him time to pay with penalty. In the present case the delay has been condoned by the controller himself.
19. It appears that Ld. ARC has rightly condoned the delay. Hence there is no ground to interfere with the impugned order. The second appeal also fails and is dismissed.
20. Trial Court Records be sent back along with the copy RCT No. 32/09 9 of 10 10 of this order. Appeal file be consigned to Record Room.
21. One copy of this order be placed in file of RCT No. 134/09.
Announced in open court on
this 17th January, 2012. (O.P. GUPTA)
DJ&ASJ-In-Charge(West)/ARCT
Delhi
RCT No. 32/09 10 of 10