Delhi District Court
Smt. Kamlesh Kumari vs Sh. Butta Ram on 22 January, 2011
IN THE COURT OF SH. RAVINDER SINGH, ADDITIONAL
RENT CONTROLLER (EAST), KKD COURT, DELHI.
RE41/08
(Case I.D. No.02402C0125732006)
Smt. Kamlesh Kumari
W/o Sh. Gajpal Singh,
R/o 4/2755, Bihari Colony,
Opposite Prakash Punj School,
Shahdara, Delhi32. ...Petitioner
Versus
1. Sh. Butta Ram
S/o late Sh. Fakir Chand,
R/o 4/752, Bhola Nath Nagar,
Gali No.13, Shahdara, Delhi32.
2. Smt. Usha Rani
W/o Sh. Butta Ram,
R/o 4/752, Bhola Nath Nagar,
Gali No.13, Shahdara, Delhi32.
Both occupying shop at:
4/2755, Bihari Colony,
Opposite Prakash Punj School,
Shahdara, Delhi32 ...Respondents
RE41/08 Page 1 of 15
Date of filing of petition : 01/02/2006
Date of argument : 22/01/2011
Date of Judgment : 22/01/2011
Petition u/s 14 (1) (a), (b) & (f) DRC Act
JUDGMENT:
1. Smt. Kamlesh Kumari (hereinafter called petitioner) filed earlier this eviction petition u/s 14 (1) (a), (b) & (f) DRC Act against Sh. Butta Ram (hereinafter called respondentno.1) in respect of premises/shop measuring about 6' x 9½' forming part of property no. 4/2755, Bihari Colony, Opposite Prakash Punj School, Shahdara, Delhi32 as shown in red colour in the site plan attached (hereinafter called tenanted premises) but subsequently Smt. Kamlesh Kumari (hereinafter called respondentno.2) filed an application u/O 1 R. 10 CPC to implead her as necessary party in the array of respondent. The said application was allowed vide order dated 27.10.2006 and accordingly she was impleaded as respondent no.2 in this case thereafter petitioner filed the amended petition.
2. Petitioner alleged that respondent no.1 was inducted as tenant on 07.05.1997 @ Rs.600/p.m. excluding all other charges in the tenanted RE41/08 Page 2 of 15 premises. It is further alleged that respondent no.1 is irregular in payment of rent and he has not been occupying the tenanted premises for the last 2 2/½ years and the tenanted premises is under the occupation of his wife i.e. respondent no.2 and his son who are illegal sublettee. It is further alleged that respondent no.1 sublet the premises without her written consent to his wife i.e. respondent no.2. It is also alleged that respondent no.1 did not occupy the tenanted premises and rent was paid to her by respondent no.2 up to 06.06.2004 but she issued rent receipts in the name of respondent no.1. It is further alleged that respondent no.2 filed a petition before the Ld. Civil Judge u/s 31 of Punjab Relief and Indebtedness Act and Ld. Civil Judge allowed the petition vide order dated 02.04.2005 without prejudice to her rights. It is further alleged that respondent no.1 has not paid the rent despite service of demand notice dated 14/20.09.2005 w.e.f. 07.11.2000 (2004) till 07.09.2005. It is further alleged that the substantial damages has been caused by breaking the floor, wall and roof of the tenanted premises by respondent no.1. Accordingly petitioner filed this petition.
3. Petitioner filed an application u/O 5 R. 20 CPC for notice of petition to respondent no.1 by way of publication as ordinary process has not been served upon him thereafter he served through publication but no RE41/08 Page 3 of 15 appearance was put on his behalf so respondent no.1 was proceeded exparte vide order dated 12.07.2006.
4. Respondent no.2 filed written statement wherein she stated that petitioner has no cause of action to file this petition as she is running a business in the tenanted premises on behalf of her husband whose whereabouts is not known to her since 09.07.2002. It is further alleged that petitioner has not accepted the rent so rent was subsequently sent through money order which was refused to accept by her thereafter she deposited the rent in the court u/s 27 DRC Act. On merit she denied the allegation of subletting. She also denied any arrears of rent and substantial damages caused in the tenanted premises.
5. Replication filed whereby the petitioner has refuted the contents of the WS and reaffirmed those of the petition.
6. In support of her case, petitioner examined herself as PW1.
7. PW1 deposed that she is the owner/landlady of the property as shown in siteplan Ex.PW1/19 which was let out to Butta Ram @ Rs.600/p.m. PW1 further deposed that on or about 30.06.2002 respondent no.1 has parted with possession of shop unauthorizedly to his wife i.e. respondent no.2 without her permission and thereafter respondent no.2 started paying rent which was accepted by her by issuing the rent receipts RE41/08 Page 4 of 15 in the name of respondent no.1. PW1 further deposed that in the beginning of June 2000, respondent no.2 asked her for rent receipts in her name but she refused thereafter respondent no.2 sent the rent through money order which was also not accepted by her. PW1 further deposed that respondent no.2 deposited the rent in court w.e.f. 07.06.2004 to 06.11.2004 u/s 30 of Punjab Relief of Indebtedness Act. PW1 further deposed that she has served legal demand notice Ex.PW1/13 upon respondent no.1 however despite service respondent no.1 has failed to clear the arrears of rent. Postal receipts sending the notice to suit shop Ex.PW1/14 and on residential address is Ex.PW1/16. U.P.C. certificate on both address is Ex.PW1/15. Registered A.D. envelop received back unserved from residential address Ex.PW1/17 and from suit shop is Ex.PW1/18. PW1 further testified that notice of demand was sent on the correct address of tenanted premises as well as on residential premises of respondent no.1. PW1 also deposed that the copy of notice Ex.PW1/13 also affixed on the shutter of shop, photograph showing the affixation of notice on shutter of shop is Ex.PW1/21, negative is Ex.PW1/22. PW1 further testified that the rent receipts issued for different period Ex.PW1/1 to Ex.PW1/12 duly signed by respondent no.1 for the separate payment of electricity also. PW1 further deposed that deposit of rent made by respondent no.2 u/s 27 RE41/08 Page 5 of 15 DRC Act are absolutely illegal as there is no relationship of landlord and tenant between the petitioner and the respondent no.2.
In cross examination PW1 testified that she was getting rent regularly till 2004 thereafter rent was deposited in the court. PW1 admitted that Butta Ram paid rent regularly alongwith electricity charges from June 2000 to June 2002. She further testified that Butta Ram came to pay the rent till June 2002 thereafter he did not come and she had not seen him. PW1 further deposed that she is not aware whether Butta Ram was missing since 09.07.2002. PW1 further admitted that rent was paid to her by Smt. Usha or by her son namely Tarun. She denied the suggestion to the effect that there is no subletting of tenanted premises and she filed the case to evict the respondent on false ground. PW1 admitted that respondent no.1 is running a cosmetic shop since 1997.
8. On the other, respondent no.2 examined her son Tarun Luthra as RW1, H.C. Mehta as RW2 and herself as RW3.
9. RW1 Tarun Luthra deposed that the whereabouts of respondent no.1 is not known since 09.07.2002 and an FIR No.448/2002 Mark 'A' was lodged in PS Model Town. RW1 further deposed that petitioner was not accepting the rent from respondent no.2 so rent was send through money order. RW1 further deposed that his RE41/08 Page 6 of 15 mother/respondent no.2 is running the business in tenanted premises on behalf of respondent no.1 whose whereabouts is not known since 09.07.2002. RW1 also deposed that he is doing service in IHG, IT services (I) Pvt. Ltd. in Pitam Pura, Delhi.
In his cross examination RW1 deposed that the shop is in exclusive possession of respondent no.2 as his father never come to the shop from date of leaving the same. He further deposed that his mother is doing the work of cosmetics on behalf of her father.
10. RW2 H.C. Mehta, Marketing Manager from Punjab Kesri News Paper proved the copy of news paper Punjab Kesri dated 18.07.2002 wherein there is an add on page no.9 of missing person i.e. Butta Ram Luthra aged about 82 years who was missing since 09.07.2002. The copy of same is exhibited as Ex.RW2/A.
11. RW3 Usha Rani deposed that she is running the business in the tenanted shop on behalf of her husband whose whereabouts are not known to here since 09.07.2002 and a FIR No.448/2002 Mark 'A' was lodged in PS Model Town. She further deposed that the process of the court also received for service of respondent no.1 thereafter she became party in this case on application u/O 1 R. 10 CPC. RW3 further deposed that she tendered the rent personally but respondent did not accept the RE41/08 Page 7 of 15 same thereafter she sent the rent through money order which was received back with endorsement "refused" thereafter she deposited the rent in court. RW3 further deposed that her son is doing the job in IHG, IT service (I) Pvt. Ltd. in Pitam Pura, Delhi and now he is doing job in Gurgaon.
In cross examination, RW3 deposed that her son does not sit on the shop. She also deposed that no other person besides her used to handle the shop. She further deposed that lastly her husband was on shop on 07.07.2002. She further deposed that she is sitting on shop on behalf of her husband. She admitted that she is not the tenant in the shop as his husband is tenant. She also testified that petitioner used to issue rent receipts in the name of her husband. She denied that she had asked the petitioner to issue the rent receipts in her name. RW3 denied the suggestion to the effect that her husband may alive and she knows the whereabouts of her husband. RW3 admitted that she has not instituted any case in any court of law to declare her husband dead. RW3 admitted her signature on Ex.PW1/7 to Ex.PW1/12 and her son on Ex.PW1/8. She also admitted the signatures of her husband on Ex.PW1/1 to Ex.PW1/6. She denied the suggestion to the effect that she has received legal notice Ex.PW1/13 however she admitted that Ex.PW1/15 bears her correct address of residence as well as shop. RW3 denied the suggestion that copy RE41/08 Page 8 of 15 of notice was pasted on shop of shutter vide photograph Ex.PW1/20.
12. I have heard the arguments of Ld. counsel for parties and I have also gone through the case file.
Relief u/s 14 (1) (a) DRC Act
13. To prove her case u/s 14 (1) (a) DRC Act, the petitioner is required to be proved that :
i) relationship of landlord and tenant;
ii) service of notice of demand;
iii)existence of arrears of rent legally recoverable on the date of service of demand notice;
iv)failure of the tenant to pay/tender the entire legally recoverable arrears of rent within stipulated period of two months from date of service of demand notice.
14. It is the admitted case of parties that respondent no.1/Sh. Butta Ram was inducted as tenant in the tenanted premises by petitioner on a monthly rent of Rs.600/p.m. and rent was paid by respondent no.1 to petitioner regularly till he was heard. RW2 also admitted that her husband was the tenant in the tenanted premises. So the relationship of landlord and tenant between petitioner and respondent no.1 is admitted fact on record so issue no.1 does not require further deliberation. RE41/08 Page 9 of 15
15. PW1 testified that notice of demand Ex.PW1/13 was sent to respondent no.1 and the said notice was served upon respondent no.1 by way of registered A.D./U.P.C./affixation. PW1 also testified that notice of demand was sent not only on residential address but also on the tenanted premises of the respondent no.1.
16. Admittedly registered envelop of legal notice of demand received back unserved not only from residential address Ex.PW1/17 but also from tenanted premises Ex.PW1/18 of respondent no.1. Both registered envelops Ex.PW1/17 & Ex.PW1/18 bears same report of postman dated 22.09.2005 'not met' and dated 23.09.2005 'PUCHNE PAR PATA CHALA PRAPTKARTA KAFI SAMAY SE LAAPATA HEY ATH VAPUS'. The report of postman on Ex.PW1/17 & Ex.PW1/18 clearly established that respondent no.1 was missing when the legal notice was sent to him. It is also pertinent that legal notice was addressed to respondent no.1 and also sent to him on his residence as well as tenanted premises.
17. RW2 proved the publication of missing information of respondent no.1 dated 18.07.2004 in newspaper Ex.RW2/A. It is also pertinent that respondent no.1 was served in this case by way of publication as ordinary process was not served upon him. Further RW1 & RW3 both have testified that the whereabouts of respondent no.1 is not RE41/08 Page 10 of 15 known to them since 09.07.2002 and they lodged a FIR No.448/02 in PS Model Town on 24.07.2002 Mark 'A'. This fact has not been disputed by respondent during cross examination of RW1 & RW3. Further no suggestion has been put to either RW1 & RW3 to the effect that respondent no.1 is not missing and he himself is concealing. In view of this, respondent no.1 is missing since 09.07.2002 so he is not available on either his residence or tenanted premises. In these circumstances, it cannot be said that legal demand notice Ex.PW1/13 was served upon respondent no.1.
18. The case of petitioner that in June 2006 respondent no.2 asked the rent receipts in her name so she refused to issue the rent receipts in her name therefore she stopped the payment of rent. It is admitted case that the respondent no.2 had been paying the rent to petitioner w.e.f. July 2002. It is also admitted that respondent no.2 paid the rent to petitioner @ of Rs.660/p.m. thereafter she started paying the increased rent @ Rs.726/ p.m. to PW1. The rent receipts of same are Ex.PW1/9 to Ex.PW1/12. The respondent no.2 paid the increased rent in the absence of respondent no.1. In these circumstances, it is unbelievable that respondent no.2 asked the petitioner for issuance of rent receipts in her name as she was paying the rent regularly on behalf of respondent no.1 since July 2002 till June 2004 RE41/08 Page 11 of 15 and thereafter she further deposited the rent on behalf of her husband.
19. PW1 demand the arrears of rent w.e.f. 07.11.2004 to 07.09.2005 in legal demand notice Ex.PW1/13. RW3 categorically testified that PW1 refused to receive the rent so she preferred to send the rent through money order dated 23.09.2005. RW3 gave the details of amount and money order. RW3 also testified that she deposited the rent of Rs.7260/ in the court of Ld. ARC on 18.10.2005. This testimony of RW3 is unchallenged as RW3 was not cross examined on behalf of the petitioner on this aspect. It is clear that the arrears of rent as claimed by PW1 in legal demand notice was paid by respondent no.2 on behalf of her husband within two months from the notice. In these circumstances, it cannot be said that arrears of rent was not paid within the stipulated period of time.
20. In view of above discussion, petitioner is not entitled for eviction order on this ground and accordingly her petition u/s 14 (1) (a) DRC Act is dismissed.
Relief u/s 14 (1) (b) DRC Act
21. For the purpose u/s 14 (1) (b) DRC Act, the petitioner is supposed to prove that : RE41/08 Page 12 of 15
(i)subtenant was in exclusive possession of property or part of the property,
(ii)the tenant has sublet the premises without obtaining the consent in writing of the landlord,
(iii)that between the subtenant and chief tenant there was relation of lessee and lessor.
22. PW1 deposed that respondent no.1 parted with the possession of tenanted premises on or after 30.06.2002. It is admitted fact on record that RW3 is the wife of respondent no.1 to whom the tenanted premises was let out by PW1. RW3 deposed that she is in possession of tenanted premises being the wife of respondent no.1 who is missing since 09.07.2002. Further RW3 also deposed that she is running the same business which was carried out by her husband i.e. respondent no.1. PW1 admitted that she was accepting the rent regularly from RW3 till June 2004 and she always issued the rent receipts in the name of respondent no.1 but when RW3 demanded the rent receipts in her name then she refused thereafter RW3 sent the rent through money order which was not accepted by her and later on RW3 deposited the rent in court. PW1 also admitted that respondent no.1 paid the rent regularly and he came to pay the rent till June 2002 and thereafter he did not come and even she had not seen him thereafter and further she does not aware whether respondent no.1 was missing since 09.07.2002 or not. It is clear from the testimony of RE41/08 Page 13 of 15 PW1 itself that respondent no.1 paid the rent to her till June 2002 thereafter he was not seen by her.
23. It is also proved on record that the FIR No.448/02 Mark 'A' was registered on 24.07.2002 in PS Model Town regarding missing of Butta Ram/the respondent no.1 and since then he is missing so PW1 was accepting the rent from his wife i.e. respondent no.2 who is in possession of the tenanted premises being the wife of respondent no.1. Further it is also admitted fact on record that the respondent no.2 paid the increase rent @ Rs.726/p.m. to PW1. It is pertinent that rent was increased by PW1 despite the fact that respondent no.1 is missing.
24. In these circumstances, I am of considered opinion that respondent no.1 has not sublet the tenanted premises to respondent no.2 who is in possession of the premises being the wife of respondent no1 who has been missing since 09.07.2002 therefore I hold that petitioner is not entitled for order of eviction on this ground also and therefore petition u/s 14(1) (b) DRC Act is dismissed.
Relief u/s 14 (1) (f) DRC Act
25. PW1 has not led any evidence to prove her case to effect that the premises has become unsafe and unfit for human habitation and RE41/08 Page 14 of 15 required bona fidely by her for carrying out repairs which cannot be carried out without the premises being vacated. In view of this petitioner is also not entitled for relief u/s 14 (1) (f) DRC Act accordingly petition u/s 14(1) (f) DRC Act is also dismissed.
26. In view of above discussion, petition u/s 14 (1) (a) & (b) DRC Act stand dismissed. Ordered accordingly.
(Announced in the open (Ravinder Singh)
court on 22/01/2010) Addl. Rent Controller(E)
KKD Court, Delhi.
RE41/08 Page 15 of 15