Delhi District Court
Petitioner vs Sh. Om Parkash Mongia S/O Sh. R. D. Mongia on 21 August, 2013
In the Court of Rent Controller District Shahdara,
Karkardooma Courts, Delhi
presided by Sh. Sunil Chaudhary, DJS
Eviction Petition No. E118/06
Unique I.D. No. 02402C0002642000
In the matter of:
1. Sh. Satgopal Kapoor S/o Sh. J. G. Kapoor
R/o 1J/17, NIT, Faridabad
2. Sh. Krishan Gopal Kapoor (Since deceased) through LR's
a) Mrs. Asha Kapoor W/o Sh. Krishan Gopal Kapoor,
b) Mrs. Leena Kapoor W/o Sh. Sanjeev Kapoor S/o Sh. K. G.
Kapoor
c) Master Chanchal Kapoor S/o Sh. Sanjeev Kapoor
d) Kumari Juhi Kapoor D/o Sh. Sanjeev Kapoor
Both through their Guardian Adlitem Smt. Leena Kapoor
All R/o 3C, 112, Buddhi Vihar, Delhi Road, Moradabad UP.
e) Mrs. Sangeeta Arora D/o Sh. K. G. Kapoor,
R/o E1/11, Krishna Nagar, Delhi 110051
f) Mrs. Rekha Arora D/o Sh. K. G. Kapoor,
C/o Arora Opticals, Sipri Bazar, Jhansi, UP
g) Mrs. Rakhi Arora, D/o Late Sh. K. G. Kapoor, R/o 394, Shukla
Tent House, Adarsh Nagar, Sipri Bazar, Jhansi
h) Sh. Amit Kapoor, S/o Late Sh. K. G. Kapoor, C/o Arora
Opticals, Sipri Bazar, Jhansi
E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 1 of 17
3. Sh. Sudhir Kapoor
S/o Late Sh. J. G. Kapoor
R/o B221, Ramprastha, Ghaziabad, UP
1. ...Petitioner
Versus
Sh. Om Parkash Mongia S/o Sh. R. D. Mongia
R/o House No. 44, Gali No. 1, Shastri Park,
Near Krishna Nagar, Delhi (Since Deceased) through LR's
a) Smt. Krishna Mongia W/o Sh. Om Parkash Mongia (Since
deceased died on 26.10.2012 and deleted vide order dated
17.11.2012)
b) Ms. Renu Mongia
c) Ms. Aditi Mongia
d) Ms. Sangita Mongia
e) Ms. Anju Mongia
All Daughters of Late Sh. Om Parkash Mongia
f) Sh. Ashu Mongia
g) Sh. Vinay Mongia
Both Ss/o Late Sh. Om Parkash Mongia
All R/o 44, Shastri Park, Near Krishna Nagar, Delhi 51.
...Respondent
Date of filing of petition : 27032000
Date on which arguments heard : 13082013
Date of decision : 21082013
E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 2 of 17
Petition for Eviction under Section 14(1) proviso
(a) of
Delhi Rent Control Act, 1958
JUDGMENT
1. The present eviction petition is filed by the petitioners Satgopal Kapoor, Sh. Kishan Gopal Kapoor and Sh. Sudhir on the grounds of non payment of rent of the tenanted premises comprising two rooms, one store, one kitchen with common user of verandah, passage, latrine and bath room in the property bearing house no. 44, Gali No. 1, Shastri Park, Near Krishna Nagar, Delhi 110032 (hereinafter referred to as 'the premises') as shown in red colour in the attached site plan against respondent Sh. Om Parkash Mongia under section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the DRC Act').
2. The brief facts of the case as claimed in the petition are that the respondent Om Parkash Mongia was inducted as a tenant in the premises in August 1972 on the monthly rent of Rs. 176/ excluding all other charges and w.e.f. 01.12.1999 the rate of rent is Rs. 193.60/. It is submitted that the respondent is very irregular and habitual defaulter in making the payment of rent and he has neither paid nor tendered the rent since 01.09.96 despite receipt of legal notice dated 11.10.99 duly E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 3 of 17 served by registered post and UPC. It is claimed that the respondent is further liable to pay rent from 01121999 at the rate of Rs. 193.60 as notice under section 6A has already served upon him and that he is liable to pay interest on the arrears of the rent @ 15% per annum. It is further submitted that the respondent has committed three consecutive defaults in making payment of rent despite availing the benefit U/s 14 (2) of DRC Act in earlier petition filed against him as such they are entitled for getting the eviction order against the respondent U/s 14 (1)
(a) of DRC Act due to non payment of the arrears of rent.
3. It is pertinent to mention here that the respondent Sh. Om Parkash expired during the pendancy of the petition and his legal representatives contested the petition by filing written statement stating therein that the same does not disclose any cause of action and lacks full ingredients of the section 14 of DRC Act and that the petition lacks cause of action as no notice under section 106 of Transfer of Property Act 1882 thereby demanding whole of the arrears of rent and determining the tenancy of the respondent has been served upon him and further that the documents filed by the petitioners do not show that the said notice dated 11101999 was actually served upon him. It is alleged that the petition is for part of the tenancy E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 4 of 17 premises and besides the details of accommodation mentioned in the petition a portion consisting of covered verandah, covered passage, latrine and bathroom with terrace exclusively and common use of open verandah/passage on the ground floor also forms part of the premises. It is alleged that the site plan being incomplete is wrong. It is claimed that the premises were let out both for non residential and residential purposes. It is denied that rent has been increased to Rs. 193.60 pm w.e.f. 01.12.99. It is denied that the respondent is irregular in making the payment and it is further claimed that cheque relating to rent upto December 1996 were handed over to the petitioner no. 3 and thereafter he has sent the rent for the period from January 1997 to April 1997 through money order which he refuses to accept and that thereafter the respondent filed a civil suit for specific performance of the sale agreement against the petitioners which is pending for disposal. It is denied that the legal notice as alleged was served upon him and that the alleged report of refusal not only is wrong but also is manipulated. It is submitted that the decision of earlier petition is matter of record requiring proper interpretation. It is further alleged that the petition is filed just to harass the respondents and is counter blast to the civil suit filed by the respondent and the same is liable to E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 5 of 17 be dismissed.
4. The petitioners filed the replication to the written statement wherein they denied the contents raised by the LR's of the respondent in the written statement and reiterated the averments made in the eviction application.
5. After completion of the pleadings, the parties were asked to lead evidence in support of their contentions. The petitioner has appeared in the witness box and was cross examined where as wife of the respondent examined herself for the defence.
6. It is provided by the Delhi Rent Control Act, 1958 that no order or decree for the recovery of possession of any premises whose rent is upto Rs. 3500/ per month shall be made by any court or Controller in favour of the landlord against a tenant however it is provided under proviso (a) of the Section 14(1) that the Controller may make an order for the recovery of possession of the premises if the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfers of Property Act, 1882.
E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 6 of 17 Relationship of landlord and tenant between the parties
7. As per the case of the petitioner the premises was let out to the respondent in August 1992 even respondent witness Smt. Krishan Mongia admitted that her husband took the premises on rent from Sh. J. G. Kapoor. Thus the relationship of landlord and tenant between the parties is not in dispute. The parties did not dispute the jurisdiction of the court to decide the petition.
Arrears of Rent
8. It is claimed by the petitioner that the respondent is very irregular and habitual defaulter in making payment of rent and have neither paid nor tendered the arrears of rent since 01.09.96. It is deposed by petitioner Sh. Sat Gopal Prakash that the defendant had paid rent only up to August 1996 and that rent was being paid by account payee cheque. He deposed that he demanded rent from the respondent a number of times but he did not pay the rent. It is the case of the respondent as claimed in the WS that four cheques bearing no. 171651 to 171654 relating to rent up to December 1996 were handed over to the respondent no. 3. It is further submitted that rent for the period of January 1997 to April 1997 was sent to him by way of money orders which he refused to accept. It is further admitted that E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 7 of 17 thereafter respondent filed a civil suit for specific performance of the sale agreement against the petitioners. The petitioner no. 1 who appeared in the witness box denied the suggestion of handing over the cheques and the tendering the rent by way of money order. The respondent is not able to bring on file the fact of encashment of the said cheques in favour of the petitioners and further that on refusal of acceptance of the rent sent through the money orders he deposited the rent with the court as per requirment of DRC Act. Moreover even for the sake of arguments, it is admitted that the cheques were encashed by the petitioners and that the rent was duly tendered by way of money order the respondent has not paid the rent to the petitioner up to date. It is claimed by the respondent that after filing of the civil suit no rent was paid to the petitioner. The respondent witness deposed that the petitioners never demanded any rent from her husband after August 1996 and thereafter from her for any period. The agreement to sale for whose specific performance a suit was filed by the respondent was dated 27.01.94. It is admitted case of both the parties that the respondent was paying the rent up to August 1996. The respondent has not brought on file any grounds as to why he stopped to pay the rent thereafter. It is not the case of the respondent that he surrendered E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 8 of 17 the tenancy in April 1997 and became the owner of the property thus as per evidence available on file as adduced by the parties it is clear that the respondent has not paid the rent after August 1996.
Service of notice of demand.
9. It is deposed by the petitioner that legal notice dated 11.10.99 was sent to the respondent through Registered AD and UPC. He also placed on file the postal receipts Ex. PW1/3 &4 and the registered envelop Ex. PW1/5 which was received back with postal endorsement 'unclaimed' intimation delivered'. It is denied by the LR's of the respondent that the notice was served upon the respondent. They took the plea in the evidence and in arguments that the respondent on the relevant dates was not in Delhi but no documents are produced on record to show the presence of respondent out of Delhi during that period. The pleat taken by them appears after thought. It is admitted by the respondent witness that the registered envelope Ex. PW1/5 bears the correct address of respondent. The petitioner claims deemed service of the notice under Section 27 of General Clauses Act. The presumption under this section is rebuttable. The LR's of respondent claims that they have rebutted the presumption by denying its receiving on oath. Reliance is placed upon cases Amarnath vs. Smt. E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 9 of 17 Champa Devi : 1978(1) Rent Control Reporter 378 in which it was held that the presumption is rebutted if addressee made a statement on oath that no notice was delivered to him nor he refused to take the notice and upon Meghji Kamji Patel vs. Kundanmal Chamanlal Mehtani : AIR 1968 Bombay 387 in which it was held that sending of letter by registered post raises presumption of delivery of letter and the presumption is rebuttable and the statement on oath by addressee that such letter was not tendered to him the presumption stands rebutted and that the ex party decree may be set aside if the postman was not examined. In the case in hand the respondent has not appeared in the witness box as he has already expired. The notice in the present case was received with the postal report of intimation delivered and unclaimed not with the report of refusal.
10. In M/s. Madan & Co. vs Wazir Javed Chand AIR 1989 SC 630 case the Apex Court while dealing with the provisions regarding the service of notice in relation to the claim of arrears by landlord under Jammu and Kashmir Houses and Shops Rents Control Act, 1966 has observed thus:"The proviso to Clause (1) of Section 11(1) of the J & K Houses and Shops Rent Control Act insists that before any amount of rent can be said to be in arrears, a notice has to be served E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 10 of 17 through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee of a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt and the addressee. The difficultly is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee, he is not expected to detain the letter until the addressee E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 11 of 17 chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted to the responsibilities of serving the summons of a Court under Order 5 of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as not found", "not in station, "addressee has left and so on, it is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But as against this, if a registered letter addressed to a person at his residential address does not get served in the normal E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 12 of 17 course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "served as "sent by post", correctly and properly addressed to the tenant and the word "receipt as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant."
11. The Apex Court in Basant Singh and Anr. v. Roman Catholic Mission AIR 2002 SC 3557 has clearly held that:"Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important....The defendant did not appear and no evidence whatsoever, on his behalf, E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 13 of 17 has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgement due.....He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute."
12. In the case of K. Bhaskaran v. Sankaran Vaighyan Balan and Anr. AIR 1999 SC 3762 referring to a notice which is unclaimed, the Supreme Court proceeded to refer to Section 27 of the General Clauses Act, 1897, and observed further that no doubt; Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 of the Act, profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves: that it was not really served and that he was not responsible for such nonservice.
13. Thus by relying on the three cases decided by the Apex Court it can be said that mere a bald statement of denial of service by the respondent witness the presumption of service of notice is not rebutted they were supposed to call the post man and to show that the notice E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 14 of 17 was not tendered to the respondent nor intimation of arrival of notice was given to the respondent. In the absence of any such evidence the court have no hesitation to held that the presumption of service of the notice arises and that the notice was duly served upon the respondent in requirement of the law.
Tendering /Payment of Rent after Service Notice
14. The LR's of the respondent have not claimed that any rent was tendered or paid after the date of notice.
15. In these circumstances where the respondent has not paid / tendered the entire legally recoverable arrears of rent within stipulated period after the service of notice upon him, the petitioner is found entitled for eviction orders.
Benefit U/s 14 (2) DRC Act
16. The petitioner has claimed that on earlier occasions, the respondent has availed benefit U/s 14 (2) of DRC Act as granted by the court of Sh. B.B. Chaudhary, the then Ld. ARC, Delhi and as such he is liable to be evicted from the premises as he has committed three consecutive defaults in making payment of rent. The respondent has not denied the filing of earlier petition and availing the benefit U/s 14 (2) of DRC Act and has stated that the same is matter of judicial E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 15 of 17 record. It is contented on behalf of LR of respondent that the respondents are entitled for benefit as the present petition is different than the earlier one and pertains to different accommodation. The copy of earlier petition and its judgment Ex. PW1/6 are available on judicial file as filed by the petitioner and the comparison of the premises as mentioned in the same with that of present one shows that the petitioner in the present petition has mentioned the common use of verandh, passage. The portion of the tenanted premises is the same. The respondent has not taken the plea of difference in the tenanted premises in the written statement. In these facts the same appears to be an afterthought. Moreover the respondent has not pleaded as to when the tenancy of verandh and passage was granted to the respondent if it was not included in the tenancy premises at then time of initiation of tenancy. In the written statement the respondent has mentioned about the filing of site plan but as per judicial record no such site plan was filed by the respondent and this fact is more clear from the order sheet dated 19.12.2011. Thus in the facts where respondent has not filed his site plan the site plan filed by the petitioner is to be considered correct. In these circumstances the plea taken by the LRs of the respondent about different petition for E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 16 of 17 different premises appears to be false. The same is declined and the LRs of the respondent are found not entitled for benefit U/s 14 (2) of DRC Act.
17. In light of above said discussion, the petition is allowed and the LRs of the respondent are ordered to be evicted from the tenanted premises comprising two rooms, one store, one kitchen with common user of verandah, passage, latrine and bath room in the property bearing house no. 44, Gali No. 1, Shastri Park, Near Krishna Nagar, Delhi 110032 (hereinafter referred to as 'the premises') as shown in red colour in the site plan Ex. PW1/1.
Announced in the open court (Sunil Chaudhary)
on 21.08.2013 Rent Controller, District Shahdara,
Karkardooma Courts, Delhi.
E118/06 Satgopal Kapoor & Ors. v. Om Parkash Mongia Page 17 of 17