Delhi District Court
Smt. Ramrati vs Shri Naresh Kumar on 7 July, 2007
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IN THE COURT OF SHRI SANJEEV AGGARWAL:
RENT CONTROLLER : DELHI
Petition No. E-753/06
Smt. Ramrati
W/o late Pt. Yad Ram Sharma
R/o D-261, Bhajanpura,
Delhi-53. ... Petitioner
Versus
Shri Naresh Kumar
S/o Shri L.N. Mal
Shop no.3, Pt. Yad Ram Market,
Tanky Road, Opp. Dispensary
Bhajanpura, Delhi-53. ... Respondent
Date of institution : 2.8.99
Judgment reserved : 7.7.07
Date of decision : 7.7.07
JUDGMENT
Vide this judgment, I will dispose off an eviction petition on the ground under Section 14(1)(a)(g)&(j) of the Delhi Rent Control Act (hereinafter referred to as the DRC Act). However, the counsel for the petitioner Shri C.P. Tyagi, Advocate had made a statement on 5.5.07 that he is not pressing the ground under Section 14(1)(g)&(j) of the DRC Act, accordingly the eviction petition on the ground under Section 14(1)(g)&(j) of the DRC Act was dismissed as not pressed. Accordingly, only the facts which are germane for deciding the eviction petition under Section 14(1)(a) of the Act are being reproduced hereunder.
2. It is stated that the petitioner is the landlord of the shop no.3, 2 Pt. Yad Ram Market, Tanky Road, Opp. Dispensary, Bhajanpura, Delhi and the respondent is a tenant in respect of the said shop as shown red in the site plan at a monthly rent of Rs.365/- without electricity and water connection. The respondent is stated to be an old tenant. It is also stated that the petitioner is a widow landlady under the Will dated 8.12.1995 of the suit premises, which were let out initially at the monthly rent of Rs.330/- per month and lateron it was increased to Rs.365/- per month w.e.f. April, 1999 without electricity and water connection. It is also alleged that the rent has been paid by the respondent in cash till September, 1998 and lateron respondent stopped paying rent to the petitioner despite service of the legal demand notice dated 15.3.07. Hence, the petitioner was constrained to file the present eviction petition.
3. Written statement has been filed by the respondent in which the relationship of landlord and tenant between the parties is not disputed. However, the extent of tenancy premises is stated to be wrong and it is stated that correct measurement of the shop is 13"x8.5". The service of the legal demand notice is also not denied.
4. Regarding the arrears of rent, it is stated that entire arrears of rent has already been paid to the petitioner and the same was accepted by the petitioner sons Sri Dutt Sharma and Ravi Dutt Sharma and the receipt of the same was issued by them. It is stated that petitioner accepted the rent from the respondent without any protest till January, 1999 but after January, 1999, when the respondent filed a case against the petitioner's 3 son which is pending in the court of ld. Civil Judge, the petitioner stopped receiving the rent, the rent accordingly for the month of February, 1999 was sent to the son of the petitioner, who refused to accept the rent. Thereafter the rent was sent by way of demand draft and the same was accepted by the petitioner and thereafter the rent was paid by way of money orders, but the same was refused to be accepted, and thereafter finding no alternative, the respondent had deposited the rent under Section 27 of the DRC Act in the court of then ld. ARC Sh. D.K. Sharma. Hence, it is stated that entire arrears of rent has been paid and the eviction order is consequently not maintainable and liable to be dismissed.
5. Replication has been filed by the petitioner in which the averments made in the written statement are vehemently denied and those made in the petition are reaffirmed as correct.
6. An order under Section 15(1) of DRC Act was passed vide order dated 9.2.00 of ld. predecessor by virtue of which the respondent was directed to pay or deposit the entire arrears of rent w.e.f. 1.12.99 till date at the rate of Rs.365/- per month without prejudice to the rights of the parties and the respondent was also directed to pay or deposit the future monthly rent at the said rate during the trial.
7. Thereafter the respondent moved an application under Section 151 CPC dated 6.2.04 seeking permission to bring certain documents on the record. The said application was allowed vide order dated 22.5.04 subject to costs of Rs.1000/- and thereafter an application under Order 6 4 Rule 17 CPC was moved on behalf of the respondent to amend para 3 of the preliminary objections which application was allowed vide order dated 30.11.04 subject to costs of Rs.300/- and instead of filing amended written statement, the respondent was directed to file additional written statement with the amended paras with an advance copy to the opposite party. Thereafter an application under Section 15(7) of the DRC Act was moved on behalf of petitioner but the said application has not been pressed by the petitioner when the final arguments in this case were heard.
9. The petitioner in support of her case has examined her attorney Sh. Man Mohan as PW1. In rebuttal, the respondent himself has appeared in the witness box as RW1. He has examined one more witness Sh. Bijender Gupta another tenant in the shop no.5 as RW2. No other witness have been examined by the either parties.
10. I have heard the ld counsel for the petitioner, ld. counsel for the respondent and have perused the record. The ld. Counsel for the petitioner has also relied upon the judgment namely, 28(1985) DLT 212, and 1992(1) RCR 118.
11. To make out a case under Section 14(1)(a) of the Act, the petitioner has to prove the following ingredients :
(i) That there is a relationship of landlord and tenant between the parties
(ii) That a valid legal demand notice was duly served upon the respondent/tenant
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.5
My findings on the above ingredients are as under :
(i) That there is a relationship of landlord and tenant between the parties.
The relationship of landlord and tenant between the parties is not disputed as the respondent has not denied para 3(a)&(b) of the petition. Accordingly, I hold that there is a relationship of landlord and tenant between the parties.
(ii) That a valid legal demand notice was duly served upon the respondent/tenant The service of the legal demand notice dated 15.3.99 is also not denied as the respondent has stated in para 18(b) of the written statement that, it is a matter of record. However, the counsel for the respondent has argued that the said legal demand notice is not at all valid demand notice as filing of the eviction petition under Section 14(1)(a) of the DRC Act contemplates that there should be a valid legal demand notice in the manner provided under Section 106 of the Transfer of Property Act and which is a mandatory provision and has alleged that in the demand notice relied upon by the petitioner no arrears of rent have been mentioned which fact has also been admitted by the petitioner in his cross examination, therefore, it is no demand notice in the eyes of law and therefore, the eviction petition deserves to be dismissed on the said ground alone.
12. On the other hand, the counsel for the petitioner has relied upon the judgment 28(1985) DLT 212 H.M. Doyal Co. Vs. Ram Nath Chitkara & ors. in which it was held as under:-
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"Held that according to Section 14(1)(a) of the 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 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 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 is 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 for 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. Under Section 26 of the Act a tenant is required to pay rent within the time fixed by contract and in the absence of such contract by the 15th day of month next following the month for which it is payable. Further Section 27 of the Act provides for deposit of rent by the tenant in case the landlord does not accept any rent tendered by the tenant."
The said judgment is squarely applicable to the facts of the present case as in the legal demand notice Ex.AW1/2 in para 3, it is clearly mentioned that the respondent is regular defaulter in making payment of rent. Accordingly the said notice clearly meets out all the requirements of Section 106 of the Transfer of Property Act as it is in writing, and it has been sent to the tenant through the counsel vide registered post, and 7 further it has been held in the judgment 1960 M.P.J. J. 1241 "landlord may, in the notice, make a blank demand without mentioning how much rent is due. In such an event, the tenant will have to pay or tender what he believes to be due." and also it has been held in the judgment 1977 (2) RCJ 49 (Gujrat) "merely because notice claims more amount than due, does not make it ineffective or invalid." In view of the aforesaid proposition of law, the notice Ex.PW1/F in para 3 of which it has been clearly mentioned that the respondent was a regular defaulter in payment of rent and it was further mentioned in the legal notice of demand asking the respondent to vacate the premises. Therefore, the respondent was clearly put to notice vide afore notice either to pay arrears of rent or to vacate the premises. Therefore, the said legal notice meets out all the requirements of Section 106 of the Transfer of Property Act and Section 14(1)(a) of DRC Act. Accordingly, it is a valid legal demand notice in view of the aforesaid settled law.
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.
It is the case of the petitioner that the respondent has not paid the arrears of rent w.e.f. October, 1998 despite the service of the legal demand notice dated 15.3.99. Whereas the defence of the respondent is that the rent till January, 1999 has been paid to the sons of the petitioner in cash for which they have also issued rent receipt(s). The rent thereafter for the month of February, 1999 was sent to the petitioner's son, who refused 8 to accept the same and thereafter the same was sent to the petitioner by way of demand draft and the same was accepted by the petitioner and thereafter the entire rent was tendered by way of money order, which the petitioner refused to accept, and thereafter the respondent had deposited the rent under Section 27 of the DRC Act. In this case, the counsel for the respondent has argued that the evidence of AW1 is not admissible in evidence since the aforesaid witness AW1 cannot depose on behalf of principal, about the facts which are in personal knowledge of principal i.e. the petitioner in view of the judgment AIR 2005 SC 439 wherein it was held as under:
"The power of attorney holder does have the personal knowledge of the matter of the appellants, and therefore, he can neither depose on his personal knowledge nor can he be cross examined on those facts, which are to the personal knowledge of the principal."
I have perused the said judgment. The said judgment is squarely applicable to the facts and circumstances of the present case and it is clearly distinguishable from the other two connected cases as in those cases, one of the son of the petitioner Sh. Shiv Dutt Sharma had appeared in the witness box and it is the case of the respondent himself in his written statement that the sons of the petitioner had been collecting the rent from the respondent. Accordingly, it cannot be said that they were aware of the facts of these cases. Whereas in the present case, it has been stated by AW1 that "I have not brought any document of register etc. regarding the 9 entry of the rent deposited by the respondent upto September, 1998. I cannot say whether there is any record of the rent paid by the respondent. I am not receiving the rent regarding any of the shop of the plaintiff." From the aforesaid deposition of AW1 in his cross examination, it appears that AW1 is not aware at all whether there is any record of rent paid by the respondent. He has also stated that he has not been receiving the rent regarding the shop of the petitioner. Accordingly, he does not seem to be aware about the facts of the present case. Accordingly, he could have not deposed on behalf of the principal i.e. the petitioner regarding the fact whether the respondent had neither paid nor tendered the arrears rent w.e.f. October, 1998 as per the case made out in the eviction petition. Further RW1 has categorically stated on oath that he has tendered the rent for the period 1.10.98 to 31.10.99 vide rent receipt Ex.RW1/A. No question has been put in the cross examination of RW1 even suggesting that the said rent receipt was forged and fabricated. Rather in the cross examination a suggestion was put to RW1, to which he replied as under :
"It is correct that rent receipt Ex.RW1/A does not bear the signatures of the petitioner, but the same is signed by her son Ravi Dutt Sharma", and it has nowhere been suggested by the petitioner that the said rent receipt was forged and fabricated. Accordingly, in view of the affirmative statement of RW1 regarding the payment of rent by way of rent receipt and no suggestion put to RW1 that the said rent receipt was forged and fabricated, the respondent has been able to prove the afore rent 10 receipt Ex.RW1/A as per law, and further it is not clear why one of the sons of the petitioner who had appeared in other two connected cases as a attorney/witness, had not appeared in the present case to deny the execution of the said rent receipt, which has been done in other two cases, as he would have been the best evidence to deny the execution of the said rent receipt. The respondent has relied upon the money order receipt Ex.RW1/C by virtue of which he stated that, the rent was sent for the month of February, 1999 but a suggestion was given to RW1 that the said money order receipt was forged and fabricated which suggestion he denied. But the onus thereafter shifted upon the respondent to prove that the rent for the said period was indeed sent by way of money order and was paid to the petitioner, which has not been done as the said money order receipt Ex.RW1/C bears no endorsement of the post office also, regarding payment or refusal of the said money order, and it was incumbent duty of the petitioner to call a witness form the post office to prove the said fact which has been disputed by the petitioner in his evidence and which has been done by giving specific suggestion in this regard. Therefore, the respondent has failed to prove that he had paid or tendered the rent for the month of February, 1999. However, the factum of tendering the rent for the month of March, 1999 onwards is not relevant for deciding the controversy in issue, as the rent for the month of March, 1999 was not due when the notice dated 15.3.99 was sent, as the rent for the month of March, 1999 was due and payable by the 15th day of April, 1999. 11
13. However, in view of the aforesaid discussion, the evidence of the AW1 is not admissible in evidence as he cannot depose for and on behalf of principal regarding the facts which are in the personal knowledge of the petitioner vide judgment (Supra) AIR 2005 SC 439. Accordingly, The petitioner has failed to prove this last ingredient.
14. Regarding the site plan, it was contended by the respondent in his written statement that the correct measurement of the shop is 13ft. X 8.5ft. However, RW1 in his cross examination has admitted that "it is correct the shop shown in the site plan Ex.AW1/5 is under my tenancy. It is correct that I have not filed any site plan. In view of the admissions made by RW1 in his cross examination that the site plan filed by the petitioner is correct and that he has not filed any other counter site plan, the petitioner has been able to prove that the site plan filed by him is correct according to the site and the respondent has failed to prove that the measurement of the shop is incorrect as stated by the petitioner.
15. The net result of the aforesaid discussion is that the petitioner has failed to make out a case under Section 14(1)(a) of the DRC Act. Consequently, the eviction petition under Section 14(1)(a) of the DRC Act stands dismissed. File be consigned to record room.
Announced in open court (SANJEEV AGGARWAL)
on 7.7.07. Rent Controller : Delhi.
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Petition No. E-753/06
7.7.07.
Present : None.
Vide separate detailed judgment of even date, the eviction petition under Section 14(1)(a) of DRC Act is dismissed. File be consigned to record room.
(SANJEEV AGGARWAL) Rent Controller : Delhi 13