Delhi District Court
Smt. Chander Prabha vs Sh. Vijay Kumar on 26 October, 2016
1
In the Court of Ms. Namrita Aggarwal
CCJ cum Additional Rent Controller1(Central)
Tis Hazari Courts, Delhi.
Case No. E 46/12 (Old), 79400/16 (New)
Unique ID No. 02401C0106692012
In the matter of :
Smt. Chander Prabha
W/o Late Mahendra Kumar Arun
R/o 5038, Deena Nath Building,
Chhe Tooti Chowk, Pahar Ganj,
New Delhi110055. ............Petitioner
VERSUS
1. Sh. Vijay Kumar
S/o Late Sh. Raj Pal Malik
R/o 5038/4, Deena Nath Building,
Chhe Tooti Chowk, Pahar Ganj,
New Delhi110055.
2. Smt. Janaki Devi
W/o Late Sh. Kishan Lal
R/o 10/145, New Moti Nagar,
New Delhi110015.
3. Sh. Mulakh Raj Malik
R/o 5038/4, Deena Nath Building,
Chhe Tooti Chowk, Pahar Ganj,
New Delhi110055. ........Respondents
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14 (1) (b) & (j) OF DELHI RENT CONTROL ACT
Date of Institution: 07.03.2012
Case reserved for Judgment: 23.09.2016
Date of Judgment: 26.10.2016
Decision: Dismissed
Page 1 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12
2
JUDGMENT
1. An eviction petition has been filed by the petitioner Smt. Chander Prabha against the respondents Sh. Vijay Kumar, Smt. Janaki Devi and Sh. Mulakh Raj Malik for vacation of the tenanted premises, i.e. three rooms, two kitchen, bathroom, latrine and store room with open courtyard situated on the first floor and three rooms and kitchen situated on the second floor of premises bearing no. 5038/4, Deena Nath Building, Chhe Tooti Chowk, Pahar Ganj, New Delhi, as shown in colour red in the site plan annexed alongwith the petition, u/s 14 (1) (a) (b) & (j) of the DRC Act.
2. The case of the petitioner is that the petitioner is the owner/landlord of the premises in question. That Sh. Pyare Lal was the original tenant with respect ot the tenanted premises. Sh. Pyare Lal was residing with his son Sh. Raj Pal Malik in the tenanted premises. Another son of Sh. Pyare Lal, namely, Sh. Kishan Lal Malik was residing separately since beginning. After the demise of Sh. Pyare Lal, the tenancy was inherited by his son Sh. Raj Pal Malik only, who started making payment of rent of the tenanted premises to the petitioner. That Sh. Kishan Lal Malik had not claimed the tenancy in respect of the tenanted premises at any point of time. It is averred by the petitioner that respondent no. 1 has neither paid nor tendered legally recoverable arrears of rent w.e.f. 01.06.2011@ Rs. 1,200/ per month. That respondent no. 1 has further parted with the possession of two rooms and a kitchen on the first floor and one room on the second floor to respondent no. 2 Smt. Janki Devi. That the respondent has also parted with the two rooms and a kitchen situated on the second floor to respondent no. 3 Sh. Mulakh Raj Malik. That after the demise of Sh. Kishan Lal Malik, his wife Smt. Janki Devi, i.e., respondent no. 2 without any right or authority had put her locks on the portion of the tenanted premises as shown in red colour in the site plan. Further, it is submitted that Page 2 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 3 respondent no. 1 is charging Rs. 1,500/ from respondent no. 3 as rent. That respondent no. 1 without the permission and consent of the petitioner has caused damages to the tenanted premises by breaking the wall for installation of A.C. in June, 2011.
On the above stated grounds, prayer is made for eviction of the respondents from the tenanted premises.
3. Summons was served upon the respondents. Respondent no. 1 filed written statement stating that the present petition is premature for want of slum permission from the Competent Authority, Slum Area, Delhi, as the suit property is situated under the Slum Area, as notified under the Slum Area (Improvement & Clearance) Act. It is further submitted that no notice dated 23.12.2011 was ever served upoon the respondent. It is further stated that the present petition is bad for nonjoinder of necessary parties since all the legal heirs of Sh. Raj Pal Malik and Sh. Kishan Lal Malik have not been impleaded in the present case. Also the son and two daughters of late Sh. Mahendra Kumar who are also claiming their ownership over the suit property in their individual capacity to the exclusion of the petitioner and also demanding rent from the respondent, have not been impleaded as a party in the present case. As per the respondent, the petitioner is claiming her alleged title over the suit property by virtue of some Will executed by Late Sh. Mahendra Kumar, whereas, his son and two daughters are disputing the alleged claim of ownership of their mother over the suit premises by virue of another Will executed by Sh. Mahendra Kumar during his lifetime to the exclusion of their mother Smt. Chander Prabha, i.e., respondent no. 1. It is further submitted by the respondent that the suit premises was let out originally to Sh. Pyare Lal for residential cum commercial purposes and the said tenant was using the entire tenanted premises for the said composite purposes since the inception of the tenancy. That after the death of Sh. Pyare Lal, his two sons, namely, Sh. Raj Pal Malik and Sh. Kishan Page 3 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 4 Lal Malik became the tenants with respect to premises in question on the same terms and conditions by operation of law. That Sh. Raj Pal Malik died leaving behind his two sons, namely, Sh. Vijay Kumar, i.e., respondent no. 1 and Sh. Ajay Kumar, as his legal heirs, while, Sh. Kishal Lal Malik left behind his widow Smt. Janki Devi, i.e. respondent no. 2 and two sons, namely, Sh. Vinay Kumar and Sh. Vijay Kumar. That all the legal heirs of Sh. Raj Pal Malik and Sh. Kishan Lal Malik became the tenants with respect to the suit premises. It is further submitted by the respondent that the respondent has deposited rent w.e.f. 01.06.2011 to 31.03.2012 @ Rs. 1,200/ per month by way of petition u/s 27 of the DRC Act in the Court of Ld. ARC. It is further submitted by the respondent that the suit property is situated in the Slum Area, as notified under the Slum Act and that since the present petition is filed without obtaining necessary permission from the Competent Authority (Slum), the same is not maintainable.
4. Replication has been filed by the petitioner, wherein the petitioner has denied all the averments made by respondent no. 1 in his written statement and further, reaverred the facts as mentioned by him in the original eviction petition. Further, it is denied that the suit property is situated in Slum Area or that necessary permission from Slum is required to be obtained. It is further submitted that Smt. Rashmi Aggarwal and Smt. Ritu Moondhra, daughters of late Sh. Mahendra Kumar Arun vide Relinquishment Deed dated 29.01.2009 had relinquished their right, title and interest in the premises in question in favour of their mother and brother. Further, it is submitted by the petitioner that respondents no. 2 & 3 have been inducted as subtenants by respondent no. 1 and respondent no. 1 is also charging rent from these two persons.
5. During evidence, the Petitioner herself stepped into the witness box as PW1 and deposed on the lines of the petition. Further, she relied upon following Page 4 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 5 documents: a) Site Plan : Ex. PW1/1
b) Certified copy of Relinquishment Deed : Ex. PW1/2
c) Counterfoil of rent receipts : Ex. PW1/3 & PW1/4
d) Copy of legal demand notice dated 23.12.2011 : Ex. PW1/5
e) Original postal receipt, speed post receipt, AD Card : Ex. PW1/6 to PW1/9 and one POD
f) Copy of house tax receipt : Ex. PW1/10
g) Original marriage invitation card of granddaughter : Ex. PW1/11 of defendant no. 2
6. The son of petitioner Sh. Pradeep Arun deposed as PW2 in sync with PW1.
7. Sh. S.K. Sharma, LDC from the Office of SubRegistrar III, Asif Ali Road, New Delhi was called as PW3, who brought with him Relinquishment Deed dated 30.01.2009 executed by daughters of the petitioner in favour of the petitioner and her son already Ex. PW1/2.
8. Sh. Virender Kumar, ZI from the House of House Tax Department was summoned as PW4, who brought with him Mutation Letter Ex. 4/A and House Tax Receipt already Ex. PW1/10 to prove that the property in question is mutated in the name of Smt. Chander Prabha and Sh. Pradeep Arun.
9. Sh. Attar Singh, UDC from the Office of NDMC was summoned as PW5, who brought with him the record pertaining to property no. 10/145, New Moti Nagar, New Delhi, to prove that the said property belongs to respondent no. 2 Smt. Janki Devi and he also brought with him House Tax Form 'A' Ex. 5/A.
10. Thereafter, an application was moved by the petitioner after conclusion of evidence of the petitioner to further examine PW6 Sh. Pramod Kumar, who brought with him the details of the electoral roll for the year 2016 Ex. Pw6/1 in order to prove that the name of the wife of respondent no. 1 is Pooja.
Page 5 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 611. On the other hand, respondent no. 1 stepped into the witness box as RW1 and deposed on the lines of his written statement.
12. Sh. Virender Kumar Sharma, Surveyor, Delhi Urban Shelter Improvement Board was examined as RW2, who brought with him record of property bearing no. 5038/4, Deena Nath Building, Chhe Tooti Chowk, Paharganj, Delhi, to prove that the said property falls under the Slum Area (Improvement & Clearance) Act. The notification regarding the same is Ex. RW2/1 & Ex/ RW2/2.
13. I have heard the arguments of both the parties and have also gone through the judicial file carefully.
GROUNDS OF EVICTION UNDER SECTION 14(1)(a) OF THE ACT:
14. The cause of action for eviction on the ground of nonpayment of rent u/s 14(1)(a) of the Act consists of the following facts:
(a) relationship of landlord and tenant between the parties;
(b) existence of arrears of rent legally recoverable on the date of notice of demand;
(c) Service of notice of demand in the manner provided u/s 106 of TP Act; and
(d) failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within 2 months of the date of service of notice u/s 106 of TP Act.
15. In the present case, the ownership of the petitioner over the premises in question as well as existence of landlordtenant relationship has not been disputed. However, it is submitted by the respondent that the petition is bad for nonjoinder of son and two daughters of late Sh Mahendra Kumar Arun, who are individually claiming their right over the suit property and also claiming rent individually from the respondent. Per contra, it is submitted by the petitioner that her two daughters have already relinquished their right in favour of the petitioner and her son by way of Relinquishment Deed dated 30.01.2009, copy Page 6 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 7 of which has been filed on record. Further, the son of the petitioner Sh. Pradeep Arun has been examined as PW2 and he has nowhere stated that he is claiming his individual right over the property in question. The respondent has failed to file even a single document to prove that any of the legal heirs of late Sh. Mahendra Kumar Arun is claiming their individual right over the premises in question and therefore, the petitioner, being a coowner is well within her right to institute the present petition. Thus, the ownership of the petitioner over the premises in question as well as existence of landlordtenant relationship for the purpose of DRC Act stands duly proved.
16. Further, it is averred by the respondent that legal notice dated 23.12.2011 Ex. PW1/5 was never served upon the respondent. However, in his crossexamination, the respondent has admitted that the address of the suit property has been correctly mentioned in the legal demand notice Ex. PW1/5. That being the case, there is presumption u/s 27 of the General Clauses Act that the notice has duly been served upon the respondent. Further, the respondent no. 1, during his crossexamination stated that the name of his wife is Smt. Sunita and not Pooja, though, the notice was duly received by Pooja. However, the petitioner further lead evidence in order to prove that Pooja is the name of the wife of the respondent and she has duly received the notice. Be it as it may be, since the address of the legal demand notice is correctly mentioned and there is a presumption u/s 27 fo the General Clauses Act that it was duly served upon the respondent in normal course of business, therefore, the notice is deemed to have been served upon the respondent. Perusal of the said notice Ex. PW1/5 clearly shows that the petitioner had demanded rent w.e.f. 01.06.2011 till the date of service of the notice @ Rs. 1,200/ per month alongwith interest @ 15% p.a. from the respondent. The respondent, by way of petition u/s 27 of the DRC Act, copy of which has been filed on record as Ex. PW1/R2, had deposited rent w.e.f. 01.06.2011 to 31.03.2012 @ Rs. 1,200/ per Page 7 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 8 month alongwith interest @ 15% p.a. on 16.01.2012, i.e., within two months from the date of service of legal demand notice. Having deposited the rent by way of petition u/s 27 of the DRC Act, in favour of the petitioner, within two months of the date of service, the respondent has discharged his legal liability and therefore, he is not liable to be evicted u/s 14 (1) (a) of the DRC Act.
GROUNDS OF EVICTION UNDER SECTION 14(1)(b) OF THE ACT:
17. In Bharat Sales Ltd. V. LIC of India, (1998) 3 SCC 1, it has been held that two essential conditions are required to be satisfied to prove subletting as under:
(a) That the alleged subtenant is in exclusive possession, and
(b) That between the tenant and the alleged subtenant, there is a relationship of lessor or lessee.
18. In, Shama Prashant Raje Vs. Ganpatrao, (2007) 7 SCC 522, it has been held by the Hon'ble Apex Court that "on subletting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and monetary consideration, have to be established."
19. Thus, the subtenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered.Page 8 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 9
20. Further, Rajbir Kaur Vs. S. Chokesiri & Co., (1989) 1 SCC 19, it was stated that "if the exclusive possession is established and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind."
21. In the present case, it is submitted by the petitioner that the respondent has parted with the possession of the tenanted premises in favour of respondents no. 2 & 3 for rent. It is submitted that respondent no. 1 has parted with the possession of two rooms and a kitchen on the first floor and one room on the second floor to respondent no. 2 Smt. Janki Devi. That the respondent has also parted with the two rooms and a kitchen situated on the second floor to respondent no. 3 Sh. Mulakh Raj Malik. Per contra, it is submitted by respondent no. 1 that respondents no. 2 & 3 are none other than cousin of respondent no. 1, who have interest in the property in question. It is an admitted case that Sh. Pyare Lal was the original tenant in the premises in question. It is further submtited that after the death of Sh. Pyare Lal, his son Sh. Raj Pal Malik and Sh. Kishan Lal Malik became the tenants in the premises in question. That after the death of Sh. Raj Pal Malik, respondent no. 1 alongwith his brother Sh. Ajay Kumar became the tenants and after the death of Sh. Kishan Lal Malik, respondent no. 2 Smt. Janki Devi and his two sons became the tenants in the premises in question, being legal heirs. Per contra, as per the case of the petitioner, after the death of Sh. Pyare Lkal, only Sh. Raj Pal Malik inherited the tenancy rights with respect to premises in question. No document has been filed by the petitioner to show that Sh. Kishal Lal Malik had surrendered his tenancy rights with respect to the premises in question.Page 9 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 10
Further, the petitioner has also not disputed that Sh. Kishan Lal Malik is also one of the legal heir of the original tenant Sh. Pyare Lal. That being the case, it has been proved that Sh. Kishan Lal Malik, being the son of Sh. Pyare Lal, inherited the tenancy rights just like Sh. Raj Pal Malik and on his death, his legal heirs also became the tenants in the premises in question. Since respondent no. 2 is none other hand the wife of deceased Sh. Kishan Lal Malik, i.e., son of the original tenant Sh. Pyare Lal, therefore, it cannot be said that respondent no. 2 is a subtenant, whereas, she holds her own individual right in the tenanted premises. No proof has been filed by the petitioner to show that any rent has ever been demanded by respondent no. 1 from respondent no. 2.
22. Further, the contention made by the petitioner that respondent no. 2 is having her own independent property in Moti Nagar is without any substance since it is not the case of the petitioner that the respondent has acquired alternative suitable accommodation, due to which they should vacate the tenanted premises. Even if respondent no. 2 has obtained any premises in Moti Nagar that does not deprive respondent no. 2 of her tenancy rights with respect to premises in question and therefore, she cannot be termed as a sub tenant.
23. Further, respondent no. 3 is also stated to be the cousin brother of respondent no. 1, who stay with him. No proof has been filed by the petitioner to show that respondent no. 1 has completely parted with the control over the premises in question in favour of respondent no. 3 exclusively or that respondent no. 3 is paying any consideration to respondent no. 1. Thus, it cannot be said that respondent no. 3 is also a subtenant of respondent no. 1. Thus, the petitioner has failed to prove creation of subtenancy by respondent no. 1 in favour of respondents no. 2 & 3.
Page 10 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 11GROUNDS OF EVICTION UNDER SECTION 14(1)(j) OF THE ACT:
24. For succeeding in a petition for eviction filed under Section 14(1)(j) of the Act, the petitioner is required to prove :
(i) That the tenants have, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises.
25. It is averred by the petitioner that the respondent has carried out structural changes in the premises in question by breaking a wall to install an A.C. However, in order to substantiate the same, the petitioner has failed to file even a single photograph. The petitioner has also not filed survey report of any property surveyor or architect to show that any material change has been caused by respondent no. 1, which has damaged the property. Hence, no ground is made out for eviction of the respondents from the tenanted premises u/s 14 (1) (j) of the DRC Act as well.
26. In the present case, it is averred by the respondent that the petitioner has not obtained permission from the Competent Authority (Slum) before filing of the present petition, though, premises in question is situated in the slum area. In order to prove the said contention, the respondent also examined RW2, Sh. Sh. Virender Kumar Sharma, Surveyor from Delhi Urban Shelter Improvement Board who brought with him record of the suit property to prove that the said property falls under the Slum Area (Improvement & Clearance) Act, vide notification Ex. RW2/1 & Ex/ RW2/2. Petitioner, on the other hand, vaguely disputed the same but failed to file any document to prove that the premises in question does not fall in the slum area and documents exhibited as Ex. RW2/1 and Ex. RW2/2 are forged documents. This proves that the suit property falls under slum area and no permission has been obtained by the petitioner before filing of petition u/s 14 (1) (a) of the DRC Act for eviction of the respondent from the premises in question. Hence, the present petition is liable Page 11 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12 12 to be dismissed on this ground as well.
27. Hence, eviction petition filed by the petitioner against the respondent for vacation of the tenanted premises u/s 14 (1) (a) (b) & (j) of the DRC Act, is dismissed as rejected. No order as to costs.
Announced in open Court (Namrita Aggarwal)
on 26th Day of October, 2016 CCJ cum ARC1 (Central)
[This judgment contains 12 pages.] Tis Hazari Courts, Delhi.
Page 12 of 12 Chander Prabha Vs. Vijay Kumar & Ors. E-46/12