Delhi District Court
Sh. Mohd. Saied vs Sh. Onkar Singh on 28 October, 2021
In the Court of CCJ cum ARC (Central District)
Tis Hazari Courts, Delhi
Presided by: Sh. Santosh Kumar Singh
Case No. E- 77971/16
CNR No. DLCT03-000110-2008
In the matter of:-
Sh. Mohd. Saied
S/o Late Sh. Mohd. Yaqoob
R/o 5-B/1, Court Lane, Civil Lines,
Delhi. ............Petitioner
Versus
1. Sh. Onkar Singh
S/o Sh. Kartar Singh
Shop No. 100/E-I & E-II,
Crockery Market, Sadar Bazar,
Delhi.
2. Sh. Iqbal Singh
S/o S. Harcharan
Shop no. 100/E-I & E-II,
Crockery Market, Sadar Bazar,
Delhi-110006. ..............Respondents
Date of institution : 13.08.2008
Date of reserved for judgment : 16.10.2021
Date of pronouncement of judgment : 28.10.2021
Decision : Petition
Dismissed
PETITION FOR EVICTION OF TENANTS UNDER
SECTION 14 (1) (a), (b), (c) & (j) OF THE DELHI RENT
CONTROL ACT, 1958, AS AMENDED UPTO DATE
JUDGMENT :-
1. This petition for eviction of tenants under clause (a) (b) (c) & (j) of the proviso to sub-section (1) of Section 14 of Delhi Rent CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 1 of 13 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:22:09 +0500 Control Act, 1958, (hereinafter referred to as 'DRC Act') has been preferred by the petitioner against the respondents for recovery of possession of tenanted premises, i.e., one room on the first floor and one room on the second floor bearing No. 100-E-I & E-II, Crockery Market, Sadar Bazar, Delhi-110006, as shown in red colour in the site plan annexed with the petition (hereinafter referred to as the 'suit premises').
2. It is stated in the petition that the petitioner is the owner/landlord of the property bearing no. 100-E-I & E-II, Crockery Market, Sadar Bazar, Delhi-110006 vide Will dated 05.03.1999 executed by his mother late Smt. Rashida Khatoon who expired on 09.02.2001. The petitioner sent a letter of attornment dated 25.05.2001 through UPC and he got the property mutated in his name and paid house tax regularly. Mutation letter dated 03.06.2003, receipts and house tax receipts are annexed with the petition. It is stated that the respondents are the tenants in respect of the tenanted premises thereof at the rate of Rs. 121/- per month, exclusive of electricity and water charges. The respondents are habitual defaulter in payment of rent and they have not paid the rent w.e.f. 01.04.2000 despite repeated demands and hence, they are in arrears of rent since 01.04.2000. The petitioner had also sent a legal demand notice dated 29.09.2003 through Registered Post as well as UPC. Despite the service of legal demand notice, the respondent neither paid nor tendered the arrears of rent. The petitioner had also informed the respondents through legal notice dated 29.09.2003 regarding inspection on 23.10.2003 between 02:00 P.M. to 05:00 P.M. and accordingly, the petitioner inspected the CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 2 of 13 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:22:24 +0500 same.
The respondents have made structural changes in the tenanted premises without the consent of the petitioner by increasing size of room in between the rooms of tenanted premises, thereby size of the additional room is of the size of room no. E-II, the size of which has already been increased from the original size, i.e., 12 x 10 and 7 x 6 respectively. To facilitate the approach to the additional room, respondents have made structural changes by altering the staircase leading from first floor to second floor. The respondents have also approached the passage in front of room no. E-I by putting stone slab supported by iron girders over the passage of first floor roof for using the space between the roof of room E-I and ground level of E-II. These changes have been made without the written consent of the petitioner. The respondents have caused or likely to cause damage to the tenanted premises. The petitioner has also issued legal notice dated 07.05.2004, directing the respondents to pay damages at the rate of Rs. 200/- per day w.e.f. 01.07.2004.
It is stated that the respondents have sub-let, assigned or parted with the possession of the tenanted premises without obtaining the consent of the petitioner. Notices dated 29.09.2003 and 01.07.2004 remained un-replied by the respondents.
The tenancy was joint for non-residential purpose. It is stated that the petitioner has taken the permission from the Competent Authority (Slums) to file the present eviction petition vide order dated 11.10.2007. Order dated 02.08.2011 u/s 15 (1) of the DRC Act was passed directing the respondents to deposit the rent during the pendency of the present petition.
CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 3 of 13 Digitally signed by SANTOSH SANTOSH
KUMAR KUMAR SINGH
Date: 2021.10.28
SINGH 16:22:38 +0500
3. Summons were served upon the respondents, who preferred to contest the same.
4. The eviction petition is contested by both the respondents by way of a common written statement of defence on the ground that petitioner has not approached the Court with clean hands and suppressed material facts. Respondents have admitted the tenant- landlord relationship. It is stated that the present petition is absolutely false and misconceived. It is denied that the respondents have sub-let, assigned or parted with the possession of the tenanted premises to anyone. It is denied that the respondents have made any alteration in the tenanted premises, as stated by the petitioner in his petition. Therefore, respondents are not liable to pay any damage. It is further denied that the respondents are the habitual defaulters for payment of rent qua tenanted premises. The respondents have requested the petitioner to collect the payment many times and the petitioner had collected lastly on 28.06.2008, i.e., w.e.f. 01.04.2004 to 31.03.2008.
5. Replication was filed by the petitioner to the written statement of the respondents, wherein he re-affirmed and re- iterated the facts mentioned in the petition and denied the defences taken by the respondents.
6. In support of his case, the petitioner got examined himself as PW1.
PW1 tendered his evidence by way of affidavit Ex. PW1/A relying upon several documents as follows :-
CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 4 of 13 Digitally signed by SANTOSH SANTOSH KUMAR
KUMAR SINGH
Date: 2021.10.28
SINGH 16:22:58 +0500
1) Will dated 05.03.1999 is Ex. PW1/1.
2) Letter of attornment dated 25.05.2001 is Ex. PW1/2 and the photocopy of its UPC marked 'X'.
3) Mutation letter dated 03.06.2003 is Ex. PW1/3.
4) Five MCD House Tax Receipts are collectively Ex.
PW1/4.
5) Demand Letter dated 27.02.2002 is Ex. PW1/5 and photocopy of postal receipt/ UPC marked 'Y'.
6) Document Ex. PW1/6 is missing from affidavit due to typographical mistake.
7) Site plan is Ex. PW1/7.
8) Demand Letter dated 29.09.2003 is Ex. PW1/8.
9) Document Ex. PW1/9 is a photocopy, therefore, same is marked as Mark 'X'.
10) Notice dated 07.05.2004 is Ex. PW1/10.
11) Order dated 11.10.2007 of Ld. Competent Authority (Slums) is Ex. PW1/11.
PW was cross-examined by Ld. Counsel for the respondents and PE was closed on 13.03.2014.
7. In support of their case, the respondent no. 2 Sh. Iqbal Singh got examined himself as RW1 and tendered his evidence by way of affidavit Ex. RW1/A and relied upon only one document, i.e., Ex. RW1/1 Rent Receipt dated 18.04.2010 (OSR).
This witness was cross-examined by Ld. Counsel for the petitioner and RE was closed on 12.04.2018.
8. I have heard the arguments tendered by Sh. Sanjeev Tyagi, CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 5 of 13 Digitally signed SANTOSH by SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:23:13 +0500 Ld. Counsel for the petitioner and Sh. R. S. Sahni, Ld. Counsel for both the respondents. Ld. Counsels for the parties have already filed written arguments. I have gone through the entire material placed on record carefully.
9. Cause of action for eviction on the ground of non-payment of rent constitutes the following facts :-
(i) Relation of landlord and tenant.
(ii) Existence of arrears of rent legally recoverable on the date
of notice of demand.
(iii) Service of notice of demand in the manner prescribed in Section 106 of Transfer of Property Act.
(iv) Failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within 2 months from the date of service of notice.
10. So far as the relationship of landlord and tenant between the parties is concerned, the same has not been disputed by the respondents in the written statement as well as in evidence.
11. So far as the relationship is concerned, as per the petitioner, the tenanted premises was let out to the respondents jointly and this fact has not been disputed by the respondents. Moreover, as per the pleadings and the rent receipt dated 18.04.2010 Ex. RW1/1 filed by the respondents vide which the respondents have admitted the fact that they are the tenants of the petitioner. Further, order dated 11.10.2007 passed by the Ld. Competent Authority (Slums) is already on record as Ex. PW1/11. Petitioner has also filed a copy of Will Ex. PW1/1.
CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 6 of 13 Digitally signed SANTOSH by SANTOSH
KUMAR KUMAR SINGH
Date: 2021.10.28
SINGH 16:23:35 +0500
Therefore, in the light of the pleadings of the parties and the material placed before the Court, it is clear that the petitioner is the owner of the tenanted premises and there exists relationship of landlord and tenant between the petitioner and the respondents and same stands proved by the petitioner.
12. Now, it is to be seen whether there exists any arrears of rent to be paid by the respondents and whether the legal demand notices dated 29.09.2003 and 07.05.2004 Ex. PW1/8 & Ex. PW1/10 respectively were duly served upon the respondents and whether the respondents had failed to make the payment of rent within 2 months of service of notice, so as to make out a cause of action against the respondents/tenants.
13. As per the case of the petitioner, the demand notice dated 29.09.2003 were served upon the respondents, however, the respondents had failed to make the payment of rent. The notice is Ex. PW1/8. Thereafter, another legal notice dated 07.05.2004 Ex. PW1/10 was served upon the respondents and its UPC is marked as 'X'.
However, after going through the record, especially the pleadings put forth by the petitioner and his cross-examination as PW1, this Court is of the view that there are material contradictions which puts a doubt upon the case of the petitioner. In the petition as well as in the evidence affidavit, it has been submitted by the petitioner that he had sent the attornment letter dated 27.02.2002 Ex. PW1/5, vide which he had informed the respondents that they were required to pay the rent w.e.f. 01.04.2000 to March, 2002. But, it doesn't talk about the rate of CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 7 of 13 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:23:53 +0500 rent. As per the petition, the petitioner again issued legal demand noticed dated 29.09.2003 upon the respondents calling upon them to pay the rent w.e.f. 01.04.2000 @ Rs. 110/- per month and it also contained that w.e.f. 01.04.2002, the rate of rent would be Rs. 121/- per month but its service proof upon the respondents were not on record. Thereafter, another legal notice dated 07.05.2004 was issued upon the respondents intimating them that the petitioner had terminated the tenancy and they were liable to pay damages @ Rs. 200/- per day w.e.f. 01.07.2004 and its UPC is marked as 'X'. Therefore, the notices on the basis of which the present petition is filed do not support the pleadings put forth by the petitioner. Moreover, in the petition as well as in the evidence by way of affidavit, it has been mentioned that the notices were sent through UPC/Registered Post. However, no such registered AD/UPC/any postal receipts have been placed on record, except the photocopies of UPCs, which are marked as 'X' and 'Y'. Nothing has been placed on record by the petitioner to prove that the notices were duly served upon the respondents. Mere filing of photocopies of UPCs cannot be said to be sufficient compliance of Section 14 (1) (a) of the Delhi Rent Control Act and Section 106 of Transfer of Property Act, 1982. Moreover, as per the case of the respondents, they used to pay the rent in cash as well as by cheque. The rent paid by way of cheque was duly accepted by the petitioner as stated by him in his evidence and he used to issue rent receipts to the respondents.
The petitioner/PW1 has deposed that w.e.f. 01.04.2000, no rent was paid by the respondents. It is deposed by PW1 that the respondents might be depositing the rent in his account, pursuant to the passing of order u/s 15 (1) of the DRC Act. PW1 has CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 8 of 13 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:24:09 +0500 deposed that the tenanted premises was let out to father of the respondents and after his death, the respondents became tenants in the tenanted premises.
In the evidence of RW1, he has deposed that he is paying advance rent to the petitioner. He has admitted that the receipt Ex. RW1/1 is for a part payment upto 18.04.2010. However, there is nothing on record which can show that the petitioner has ever received the rent by cheque. Nor has this fact been proved by the respondents on record.
Perusal of whole testimonies and documents on record make it clear that the petitioner has nowhere mentioned in the whole petition that what was the exact rate of rent initially. Nor has he been able to prove that there was any arrears of rent due upon the respondents as he has failed to prove the service of legal demand notices. Therefore, it can be said that the petitioner has miserably failed to prove his case u/s 14 (1) (a) of the DRC Act as neither has he been able to prove the service of legal demand notices upon the respondents, nor has he been able to disprove the case of the respondents that the rent was duly paid or tendered by the respondents and there was no arrears of rent due upon the respondents.
14. So far as the issue of sub-letting or assigning or parting with the suit premises is concerned, it is pertinent to mention here that it is contended by the petitioner that the respondents have sub-let or parted with the possession of the tenanted premises without his written consent. This fact has been categorically denied by the respondents.
CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 9 of 13 Digitally signed by SANTOSH SANTOSH KUMAR
KUMAR SINGH
Date: 2021.10.28
SINGH 16:24:24 +0500
15. The Court has to decided whether the respondents have sub-let, assigned or otherwise parted with the possession of the tenanted premises without the consent of the petitioner.
16. It is a well settled law that to seek an eviction u/s 14 (1) (b) of the DRC Act, the petitioner has to prove that the tenants have sub-let, assigned or parted with the possession of the premises in such a way that the sub-tenant is in exclusive possession of the premises or part thereof and the tenants have no control over the premises as such.
17. In the pleadings, it has been contended by the petitioner that the respondents have sub-let, assigned or parted with the possession of the tenanted premises illegally without his consent and permission.
It has been deposed by PW1 that the tenanted premises was sublet to M/s Talwar Plastics and M/s Marwa Electric by the respondents. But this fact has been categorically by the respondents in their pleadings as well as in their evidence.
Perusal of testimony of the petitioner reveals that in the pleadings, no name of sub-lettee has been mentioned by the petitioner. And for the first time, the name of the sub-lettee, i.e., M/s Talwar Plastics and M/s Marwa Electric were mentioned by the petitioner in his evidence. No documentary evidence has been placed on record showing that the sub-lettees were ever been in the possession of the tenanted premises.
Hence, no evidence has come on record to prove that the respondents have no control over the tenanted premises. Nor any evidence has been brought on record by the petitioner that CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 10 of 13 Digitally signed SANTOSH by SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:24:38 +0500 respondents have ever sub-let, assigned or parted with the possession of tenanted premises to any sub-lettee, namely, M/s Talwar Plastics and M/s Marwa Electric.
Hence, this Court has no hesitation in holding that the petitioner has miserably failed to prove the ground of sub-letting, as envisaged u/s 14 (1) (b) of the Delhi Rent Control Act.
18. So far as the petition u/s 14 (1) (c) of the DRC Act is concerned, as per the contents of the petition, the respondents are mis-using the tenanted premises for the purpose other than it was let out.
In the written statement filed by the respondents, the said fact is denied by them.
19. As per the contents of the petition, the notices dated 29.09.2003 and 07.05.2004 were sent to the respondents. Now, the question arises as to what was the misuse and how the tenanted premises was being misused by the respondents. Nothing has come on record to show that in what manner the tenanted premises was being mis-used by the respondents. Legal notices dated 29.09.2003 and 07.05.2004 Ex. PW1/8 & Ex. PW1/10 respectively, petition and even the evidence affidavit of the petitioner, i.e., PW1 are silent in this regard. Moreover, as per Section 14 (5) of the DRC Act, a notice in a prescribed manner is necessarily be served upon the tenants calling upon them to stop the misuse within a month of service of notice. Bare perusal of notice dated 29.09.2003 and 07.05.2004 Ex. PW1/8 & Ex. PW1/10 respectively show that there are no such averments in the said notices. The petitioner has failed to prove CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 11 of 13 Digitally signed SANTOSH by SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:25:02 +0500 as to whether the misuse is a public nuisance or that it causes damage to the premises detrimental to the interest of the landlord. Therefore, the petitioner has miserably failed to prove contents of Section 14 (1)(c) of the Delhi Rent Control Act.
20. So far as the petition u/s 14 (1) (j) of the DRC Act is concerned, the petitioner has pleaded in the petition that the respondents have cause or permitted to be caused substantial damages to the tenanted premises. However, no evidence has been led to that effect.
21. It has come on record that the tenanted premises was let out to the father of the respondents. It has come on record that the legal demand notices dated 29.09.2003 and 07.05.2004 Ex. PW1/8 and Ex. PW1/10 respectively were sent to the respondent vide which it was alleged that the respondents have made structural changes in the tenanted premises without the consent of the petitioner by increasing size of room in between the rooms of tenanted premises, thereby size of the additional room is of the size of room no. E-II, the size of which has already been increased from the original size, i.e., 12 x 10 and 7 x 6 respectively. To facilitate the approach to the additional room, respondents have made structural changes by altering the staircase leading from first floor to second floor. The respondents have also approached the passage in front of room no. E-I by putting stone slab supported by iron girders over the passage of first floor roof for using the space between the roof of room E-I and ground level of E-II. These changes have been made without the written consent of the petitioner. The CIS No. 77971/16 Mohd. Saied Vs. Onkar Singh and Anr. Page 12 of 13 Digitally signed SANTOSH by SANTOSH KUMAR KUMAR SINGH Date: 2021.10.28 SINGH 16:25:16 +0500 respondents have caused or likely to cause damage to the tenanted premises. And vide legal notice dated 07.05.2004, the respondents were directed to pay damages at the rate of Rs. 200/- per day w.e.f. 01.07.2004. However, the petitioner has failed to prove this fact. Moreover, the petitioner has failed to prove the status of the tenanted premises at the time it was let out. The site plan Ex. PW1/7 is filed on the basis of present situation but no site plan is filed of the time when the premises was let out. PW1 was unable to give clear answers regarding substantial damage caused to the tenanted premises. PW1 admitted that he had no document to show the condition of the tenanted premises existed at the time of letting out.
22. Therefore, there is no evidence led by the petitioner to show substantial damage caused to the property. There is nothing on record to suggest and show what was the substantial damage actually caused to the property in question. No expert evidence brought on record by the petitioner in support of his contention. Therefore, no ground to grant any relief u/s 14 (1) (j) of the DRC Act is made out.
23. In view of the above discussion, the present petition filed by the petitioner against the respondents u/s 14 (1) (a), (b), (c) &
(j) is dismissed. No order as to costs.
24. File be consigned to record room.
SANTOSH Digitally signed by
SANTOSH KUMAR
KUMAR SINGH
Date: 2021.10.28
SINGH 16:25:31 +0500
Announced in open Court (Santosh Kumar Singh)
on 28th Day of October, 2021 CCJ cum ARC (Central)
Tis Hazari Courts, Delhi
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