Delhi District Court
Ms. Kusum Sharma vs Sh. Ram Avadh on 7 July, 2015
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
E. No: 79/2012
Date of Institution :25/07/2012
Date of Judgment : 07.07.2015
Ms. Kusum Sharma
D/o Late Sh. Jai Prakash
R/o 2094/5, Prem Nagar,
Near West Patel Nagar,
New Delhi-110008. ....Petitioner
VERSUS
Sh. Ram Avadh
S/o Sh. Littor Ram
R/o 2094/5-B, Prem Nagar,
Near West Patel Nagar,
New Delhi-110008.
Also at:
Gali no. 16, Near Railway Colony Crossing.
...Respondent
JUDGMENT
1. Vide this judgment the court shall decide the petition Under Section 14(1)(a) of Delhi Rent Control Act (in short "DRC Act").
2. By filing the present petition, applicant/petitioner Ms. Kusum Sharma daughter of late Sh. Jai Prakash is seeking eviction of respondent Sh. Ram Awadh in respect of a "Jhuggi" forming part of property No. 2094/ 5B, Prem Nagar, Near West Patel Nagar, New Delhi as shown in red colour in the site plan attached with the petition (hereinafter referred to as tenanted premises) for non-payment of rent.
E. No. 79/2012. Page 1 of 133. The facts in brief as narrated in the petition are that predecessor in interest of the petitioner, late Sh. Jai Prakash was the owner/landlord of the tenanted premises. The petitioner is one of his daughter. Apart from petitioner, late Sh. Jai Prakash left behind other legal heirs, namely, Smt. Bimla (widow), Ms. Shashi, Ms. Usha, Ms. Santosh Sharma, Ms. Kusum Sharma and Ms. Babita Sharma.
It is further stated that the present respondent was in litigation with late Sh. Jai Prakash, father of the petitioner. And vide order dated 06/08/2005 in civil suit bearing no. 221/05 decided by the then Ld. Civil Judge Sh. Gautam Manan, it was held that respondent is a tenant of the petitioner side in tenanted premises. It is further claimed that such order is not challenged by the the present respondent and as such the same has become final. It is further stated that now again the respondent has started harassing the petitioner. It is further claimed that respondent is a habitual defaulter in the payment of rent to the petitioner and has been running into arrears of rent since 1991 @ Rs. 200/- per month. It is further stated that respondent has failed to clear the rent despite requests and demands. As such it is further stated that respondent is also liable to pay interest @ 15% per annum as per law. Hence the petitioner even issued a legal notice of termination of tenancy dated 20/03/2012 through her counsel Sh. C.M. Sharma and further called upon the respondent to pay entire arrears of rent and to hand over the possession of the tenanted premises to the petitioner. That such notice was duly served upon the respondent. That respondent even replied to such legal notice vide reply dated 30/04/2012. That the respondent failed to pay the arrears of rent within the stipulated period of two months from the date of notice and as such the present petition has been E. No. 79/2012. Page 2 of 13 filed for eviction of the respondent.
4. The respondent filed Written Statement on 03/11/2012 to the eviction petition. The respondent admitted receiving of the legal demand notice in question and giving his reply too. But he vehemently denied that there is relationship of tenant and landlord between the petitioner and the respondent.
On the contrary, it is claimed by the respondent that tenanted premises is vested in Gram Sabha and no person can claim for the title over such land which is a Government land.
Even otherwise, it is claimed by the respondent that he had purchased the tenanted premises from one Sh. Ram Kewal for a consideration of Rs. 6,000/- on 28/04/1988, but nobody/Pradhan/ Caretaker or petitioner issued receipt of the same to him as the tenanted premises belongs to government. It is further claimed that he is paying maintenance charges of Rs. 30/- to the Caretaker/ Pradhan.
But the respondent did not deny the factum of above mentioned civil suit before Sh. Gautam Manan, the then Ld. civil Judge. But it is claimed that respondent's counsel Sh. M.P. Suri expired later, therefore, the respondent was not aware about the proceedings against him in the court as such he could not take appropriate steps.
The respondent further stated that there is no question of payment of rent to the petitioner.
5. In replication dated 11/12/2012, the petitioner denied the stand taken by the respondent and reiterated the contentions of the petition.
E. No. 79/2012. Page 3 of 136. In this case vide order dated 19/12/2012 it was held by my Ld. Predecessor that relationship of landlord and tenant is disputed between the parties and other defences taken by the respondent the order under section 15(1) Delhi Rent Control Act was deferred till final stage.
7. Thereafter, the matter was put up for PE. Evidence was produced by both the sides. The petitioner examined herself as the only witness. In her evidence by way of affidavit, she deposed on the lines of her main petition. She further proved various documents i.e. photocopy of her ration card, election I-card as Ex. PW-1/1 & PW-1/2 respectively; customary documents relating to sale and purchase dated 01/04/1991 as Ex. PW-1/3 (colly.); copy of site plan Ex. PW-1/4; certified copy of judgment dated 06/08/2005 in civil suit no. 221/05 as Ex. PW-1/5; order of Ld. Appellant court dated 27/05/2002 as Ex. PW-1/6; carbon copy of legal demand notice dated 20/03/2012 as Ex. PW-1/7; and postal receipt Ex. PW-1/8.
PW-1/petitioner was cross examined at length by the respondent side.
8. Whereas respondent examined himself as RW-1. Further he examined his cousin brother Sh. Vikram Ram as RW-2. Both such witnesses in their examination in chief by way of affidavit deposed on the lines of the stand taken in W.S. Further, RW-1/respondent proved photocopy of ration card and Adhar card as Ex. DW-1/1A, DW-1/1B, DW-1/1C; copy of reply dated 30/04/2012 to legal notice as Ex. DW-1/2A and postal receipt thereof as DW-1/2B.
RW-1/respondent as well as RW-2 were cross examined at E. No. 79/2012. Page 4 of 13 length by the petitioner side.
9. Arguments were heard and record perused carefully.
10. To prove the case under section 14(1)(a) of DRC Act, the petitioner is required to prove the following ingredients:-
(I) That there is relationship of landlord and tenant between the parties;
II) Rate of rent;
III) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice; IV) That a valid legal demand notice was duly served upon the respondent; and V) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
11. The ingredients are taken up for consideration one by one :-
12. But before proceeding further it is pertinent to note that present respondent has not disputed that petitioner Ms. Kusum Sharma is the daughter of late Sh. Jai Prakash. Further, it is settled law that one of the LR/co-owner/landlord can maintain the petition of present nature.
I. Relationship As Landlord and Tenant :
13. The Relationship of landlord and tenant between the parties is denied by the respondent/tenant. In fact, on the contrary it is deposed by RW-1/respondent that he is the owner of E. No. 79/2012. Page 5 of 13 tenanted premises and he had purchased the same from one Sh. Ram Keval on 29/04/1988. But RW-1/respondent as well as his witness RW-2 failed to place on record any document relating to the ownership of the respondent. Further, the explanation tried to be given in this regard by the respondent is that such documents are already lost. Further in his cross examination he further deposed that such documents were destroyed in fire in the tenanted premises. But he admitted that he did not mention such incident of fire in his affidavit of evidence Ex. DW-1/1. Further, respondent's witness RW-2 admitted in his cross examination that no document relating to complaint to police department regarding loss of such document is placed on record. As such it is held that respondent failed to prove his defence that he is the owner of tenanted premises in question.
14. Further, in any case it is deposed by PW-1/petitioner which is also admitted by RW-1/respondent, that in a previous civil suit between the parties (a certified copy of which is Ex. As Ex. PW-1/5), it was held that there is relationship of landlord and tenant between the parties. In fact, in such previous civil court judgment, which is binding on this court of Rent Controller, same defences were taken by the present respondent. And same was a contested judgment and after appreciating the evidence it was held in para no. 18 that present respondent is a tenant in the tenanted premises in question under the present petitioner side. In fact, in para 19 of that judgment it was further held that present petitioner side is the owner of suit property qua the present respondent.
Now, such findings have become final between the present petitioner and respondent has failed to place on record that he E. No. 79/2012. Page 6 of 13 preferred an appeal against such findings and such findings were set aside by the higher courts.
15. Thus it can be safely concluded that there is a relationship of landlord and tenant between the parties.
Rate of Rent:
16. It is deposed by petitioner/PW-1 that rate of rent of suit premises is Rs. 200/- per month excluding electricity charges. On the other hand, the respondent/RW-1 as well as RW-2 stated that there is no question of paying rent to the petitioner side and they denied that there was any rate of rent including Rs. 200/- per month. Further, the RW-1/ RW-2 deposed that they regularly paid the maintenance charge of Rs. 30/- per month to the representative/ caretaker/ pradhan of the jhuggi in question.
17. On going through the oral evidence as well as the documentary evidence, it is revealed that apart from such oral allegation the petitioner failed to place on record any supporting documentary evidence including the counter copy of rent receipt. But it is the case of petitioner that respondent did not pay the rent since 1991, therefore, it is natural that there cannot be even counter copy of rent receipt since then. But at this stage, it is pertinent to mention that petitioner/PW-1 herself relied upon document/certified copy of the judgment delivered by the civil court, Ex. PW-1/5. In para no. 18 thereof, inter alia it is held by Ld. Civil court that respondent is a tenant @ Rs. 30/- per month. And it is not the case of present petition that they challenged such findings that rate of rent is not Rs. 30/- per month but Rs.
E. No. 79/2012. Page 7 of 13200/- per month, as claimed by the petitioner side in that suit as well as in present petition. Therefore, such findings of the civil court in that judgment has also attained finality. As such it is held that rate of rent is Rs. 30/- per month, as it is not the case of petitioner that thereafter it was enhanced as per the provision of DRC Act.
III) Arrears Of Rent:
18. The question before the court is whether the respondent was in arrears of rent on the date of notice?
19. It is the case of the petitioner that the respondent had defaulted in payment of rent and failed to pay rent since 1991 despite the service of legal notice Ex. PW-1/7 dated 20/03/2012 which was admittedly served upon the respondent and respondent even replied to the same vide reply Ex. DW-1/2A.
20. In reply to the contention raised by the petitioner, the respondent denied that he has ever defaulted in payment of rent. In fact, it is the case of the defendant that there is no question of payment of rent to the petitioner. But it is already held above that there is relationship of landlord and tenant between the present petitioner and respondent. Further, it is settled law that when the petitioner alleges non-payment of rent under section 14(1)(a) of DRC Act, the onus lies upon the respondent/tenant to prove that he has paid the rent. It has been held in "Sukhanand Vs. IVth Additional District Judge, Bulendshahar & ors." [1994(2) AIRCJ 27] that the onus to show payment of rent lies on the tenant and oral testimony of tenant in regard to the payment of E. No. 79/2012. Page 8 of 13 rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all.
21. Thus, it is an admitted fact that no rent was paid or received since the year 1991 and as such the respondent is in arrears of rent since 1991 as on the date of legal demand notice Ex. PW-1/7.
IV) That a valid legal demand notice was duly served upon the respondent:
22. As far as service of demand notice EX. PW-1/7 upon the respondent is concerned, same is admitted by the respondent.
V) That despite the service of the legal demand notice the respondent has neither paid nor tendered the entire arrears of legally recoverable rent:
23. On a bare reading of evidence on record it is clear that respondent neither paid or tendered the arrears of even legally recoverable rent to the petitioner after the service of legal demand notice nor he deposited the same in court under section 27 of Delhi Rent Control Act.
24. Further, in the present case interest at the rate of 15% as per Delhi Rent Control Act has been specifically demanded in the legal demand notice Ex. PW-1/7. As such the judgment of Honorable Delhi High Court in " Raghbir Singh vs. Sheela Wanti & Anr"[ 2009 (109) DRJ 19] also applies squarely to the fact of the present case and as such the respondent was under
an obligation to tender interest on rent along with rent, which the E. No. 79/2012. Page 9 of 13 respondent failed to tender.
25. In view of the above discussion the court is of the opinion that despite the service of the legal demand notice, the respondent has neither paid nor tendered the entire arrears of legally recoverable rent.
26. Before proceeding further, there is another important issue involved in this case. In the legal demand notice Ex PW-1/3, the arrears of rent are demanded @ Rs. 200/- per month, that too even for past period from the year 1991 onwards. Whereas it is held above that the rate of rent is Rs. 30/- p.m. and thre is nothing on record that it was ever validly increased from such rate of rent. Therefore, the question may arise when the rent at legally recoverable rate of Rs. 30/- per month not demanded at all in the legal demand notice Ex. PW-1/7, (and instead the rent was invalidly demanded at enhanced rate of Rs. 200/- per month), whether such demand was valid? And further, whether the respondent was still under legal obligation to pay or tender the arrears of rent at least at legally recoverable and admitted rate of Rs. 20/- per month at the time of issuance of such legal demand notice?
27. In this regard, this court holds that the amount of arrears due is within special knowledge of the tenant and he has a duty to pay or deposit the monthly rent under Sections 26 and 27 of the Delhi Rent Control Act. However, on receipt of a formal notice of demand, he must at his risk to pay or tender the amount due in order to escape eviction upon breach of clause (a) of the proviso E. No. 79/2012. Page 10 of 13 to sub Section (1) of Section 14 of the Act. There is always a scope for genuine difference between the amounts claimed by the landlord and admitted by the tenant and the difference will have to be resolved by the Court, but the mere fact that the amount mentioned in the notice is found to be incorrect is no ground for holding that the notice or legal proceedings following upon it are invalid. (The judgments in the cases of Raj Rani vs Gian Chand [1986 (11) DRJ 82, 1986 RLR 284], and The Life Insurance Corporation of India v. The Standard Button Agency [ 1972 Rcj 199] 'Raghunath RavJi Dandekar v. Anant Narayan Apte, [Civil Appeal No. 387 of 1964 decided on 5th April, 1966], relied in this regard).
28. There can be no justification for the tenant to remain silent and not paying 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.
29. In the background of such position of law, we come back to the facts of present case. In the present case, as per the respondent, which is also held correct, the rate of rent is only Rs. 30/- per month and not Rs. 200/- per month for the period which is mentioned in the legal demand notice Ex. PW-1/7. But, it is already held above that respondent even failed to prove on record that he had paid or tendered or deposited in court the rent @ Rs. 30/- per month. Therefore, in view of such above mentioned position of law, it is held that despite the service of the legal demand notice in question, the respondent has neither paid nor tendered the entire arrears of even legally recoverable rent.
E. No. 79/2012. Page 11 of 1330. Conclusion:
From the above said discussion, it is clear that the petitioner has proved all the ingredients of Section 14(1)(a) of DRC Act and, therefore, the present petition is decided in favour of the petitioner and against the respondent with respect of tenanted premises i.e. in respect of a "Jhuggi" forming part of property No. 2094/ 5B, Prem Nagar, Near West Patel Nagar, New Delhi as shown in red colour in the site plan attached with the petition Ex.PW1/4.
31. In the foregoing circumstances, the respondent is held to be a defaulter within the meaning of Section 14(1)(a) of DRC Act.
32. Perusal of the record shows that order U/Sec. 15(1) DRC Act was deferred for final stage by my Ld. Predecessor in this case. As such, I hereby pass an order U/Sec. 15(1) of D.R.C. Act based of the finding noted above. Accordingly, the respondent is directed to pay to the petitioner or deposit in court the arrears of rent w.e.f. 25/07/2009, and not since 1991, (because of law of limitation of 03 years for recovery of rent from the date of institution i.e. 25/07/2012) @ Rs.30/- per month along with statutory interest @ 15% per annum thereupon till date within one month from today under section 15(1) of DRC and continue to pay the future rent by 15th of each succeeding English calendar month.
33. Put up on 18.09.2015 for consideration regarding compliance of this order and whether respondent is entitled to benefit under Section 14(2) of DRC Act or not, as non compliance of aforesaid order would disentitle the respondent from availing E. No. 79/2012. Page 12 of 13 benefit under section 14(2) of DRC Act.
34. Separate file be maintained for consideration as regards benefit under section 14(2) DRC Act.
35. No order as to costs. This file be consigned to Record Room.
Announced in the open court on 07/07/2015.
(This judgment contains 13 pages).
(Naveen Kr. Kashyap) Commercial Civil Judge-cum Additional Rent Controller, West District Courts, Delhi.
E. No. 79/2012. Page 13 of 13