Delhi District Court
In Re vs Sh. Ramesh Kumar Uppal on 26 September, 2012
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
Date of institution : 25.09.2010
Arguments heard on : 12.09.2012
Announced on : 26.09.2012
In re :
RCA no. 21/10
Smt. Amarjit Kaur
W/o Late Sh. Ajit Singh
R/o R-890, New Rajinder Nagar,
New Delhi-110060 ... Appellant
Versus
Sh. Ramesh Kumar Uppal
S/o Late Sh. L. C. Uppal
R/o R-890, New Rajinder Nagar,
New Delhi-110060 ... Respondent
JUDGMENT
1. Challenge in this appeal is the judgment and decree dated 27.08.2010 passed by Ld. Civil Judge-03, Central District, Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 1 of 16 r -2- Delhi vide which the suit of the plaintiff/respondent was decreed against the appellant/defendant.
2. In the suit, the respondent had sought a decree of possession, mesne profits and permanent injunction, on the ground that he was owner of the property. Appellant was a tenant in the property. Earlier, the rent of the property was Rs.3220/-, which was increased by 10% U/s 6A of Delhi Rent Control Act, 1958, vide a notice dated 5.1.2005. The rent was increased by 10% from Rs.3220/- to Rs.3542/- thereby taking the property out of the purview of Delhi Rent Control Act, 1958. Thereafter, vide another notice dated 8.2.2005, the tenancy of the appellant was terminated w.e.f. 28.2.2005. When the appellant did not vacate the property, the said suit was filed which was decreed in favour of plaintiff/respondent.
3. The stand of the appellant before the Ld. Trial Court was that, neither the notice of enhancement of rent was received nor the notice of termination of tenancy was received by her and the rent continued to be Rs.3220/- per month, therefore, the suit was barred U/s 50 of Delhi Rent Control Act. The defendant also took defence that though the notices were not served still those notices were bad in law; the landlord kept on receiving rent at the old rate of rent Rs.3220/- even after February 2005 therefore, the notices stood waived; the defendant/appellant Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 2 of 16 r -3- alone was not tenant of the suit premises and in fact her husband Sh. Ajit Singh was a tenant who died as a contractual tenant and therefore all his class-1 legal heirs became tenant but other Class-1 legal heirs of Ajit Singh were not impleaded in the suit.
4. Ld. Trial Court framed issues on three different dates i.e. 5.09.2005, 23.1.2006 & 16.1.2008:-
(i) Whether the present suit is barred under the provisions of Order 7 Rule 11 CPC? OPD
(ii) Whether the present suit is barred under the provisions of Section 50 of Delhi Rent Control Act? OPD
(iii) Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD
(iv) Whether the plaintiff is entitled for decree of permanent injunction? OPP
(v) Whether the plaintiff is entitled to decree for mesne prof its/damages, if yes? On what rate and for what period?OPP.
(vi) Whether any interest is payable, if yes? At what rate?
OPP
(vii) Relief.
Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 3 of 16 r -4- After allowing an application under Order 14 Rule 5 CPC, the following issues were additionally framed:
(i) Whether the defendant is the tenant on monthly rent of Rs. 3,542/-, if so, its effect? OPP
(ii) Whether the tenancy of the defendant has been validly terminated by the plaintiff? OPP
(iii) Whether the plaintiff waived the notice dated 08/02/05 by receiving the rent thereafter? OPD
(iv) Whether the plaintiff is entitled for decree of possession as prayed? OPP An additional issue was framed vide order dated 16/01/2008:
(i) Whether the suit is barred on account of non-joinder of necessary parties i.e. all legal heirs of the deceased tenant Late Sh. Ajit Singh should have been as party in the suit?
OPD
5. Ld. Trial Court observed that the legal notice dated 5.1.2005 Ex.PW1/2, vide which the rent was enhanced by 10% U/s 6A of the Delhi Rent Control Act and the legal notice dated 8.2.2005 Ex.PW1/6 terminating the tenancy of the appellant was duly served upon the appellant. Ld. Trial Court invoked Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 4 of 16 r -5- Section 114(f) of the Indian Evidence Act and Section 27 of the General Clauses Act to presume service of the two notices. Both these notices were sent through registered AD post and also through UPC. The addresses on these notices were not disputed. Ld. Trial Court presumed that these notices, in ordinary course must have been served upon the appellant/defendant within three days of its post. It was held by the Ld. trial Court that vide the first notice, the rate of rent stood increased to more than Rs.3500/- per month thereby taking the suit premises out of the purview of Delhi Rent Control Act and subsequently, the tenancy was terminated by the second notice.
6. Ld. Trial Court also observed that the subsequent deposit of rent at the old rate by the tenant in the bank account of the land lord was of no consequence since it was without permission of the land lord and it was also objected to by the land lord. It is also held in the impugned judgment that it was the appellant/defendant alone who was tenant in the property and other Class-1 legal heirs of Ajit Singh were not tenants since they were not residing in the suit property and therefore they were not required to be joined.
7. The appellant claims that all the Class-1 legal heirs of deceased Ajit Singh, the original tenant, ought to have been Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 5 of 16 r -6- impleaded in the suit and the suit was therefore not maintainable against the sole appellant who was paying rent for and on behalf of all the legal heirs of Ajit Singh. The appellant relied upon Jamila Begum & Ors. Vs. Jumma @ Billu Rehman & Ors 20 (1981) Delhi Law Times 445 Delhi High Court; Smt. Shanti Sharma Vs. Smt. Ved Prabha & Ors 20 (1981) Delhi Law Times 127 Delhi High Court; Smt. Vidyawanti Vs. Tokan Dass 1974 Rajdhani Law Reporter. 23, to put forth her point that all the Class-I LRs of deceased Ajit Singh were not impleaded as parties in the suit and notice of termination of tenancy was not given to each one of them.
8. It is not in dispute that Ajit Singh was the tenant of the suit property. He died in the year 1997 and left behind his wife Amarjeet Kaur (appellant), two sons Sh. B.S.Gill & Sh. Mohanjit Singh and one daughter Ms. Gurjeet Kaur. Perusal of testimony of DW1 B.S.Gill would reveal that he admitted that he was not residing in the suit property for many years and even prior to 1982 he was residing in Canada. This witness also admitted that his brother Mohanjit Singh was also residing in Canada and not in the suit property. His sister Gurjeet Kaur was residing separately in New Delhi. Thus, besides the appellant, none of the Class-I legal heirs of Ajit Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 6 of 16 r -7- Singh were residing in the suit property as tenants. At the most Sh. Harman, who was examined as DW3 was residing in the suit property, but he is not Class-1 legal heir of deceased Ajit Singh, admittedly. Therefore, he cannot be a co-tenant.
9. In the case of Inderpal Khanna Vs. Commander Bhupender Rekhi 2008 VIII AD Delhi 328, it was held that it is not necessary for the landlord to implead all the legal heirs of the deceased tenant and the landlord is not bound to implead even those legal heirs who are not in occupation/possession of the premises. It was also held that service of one of the joint tenant has to be considered sufficient service on other joint tenants because the tenancy remains one.
10. It is contended by the appellant that DW1 B.S.Gill deposed that his mother, the appellant, had been paying rent on behalf of all the legal heirs and there is no cross examination on this point by the plaintiff. It is also argued that the daughter of Ajit Singh namely Gurjit Kaur after her divorce in the year 2000 started living with the appellant in the suit premises. Merely because the plaintiff did not cross examine this witness on this point does not create any circumstance in favour of the appellant to the effect that all the LRs of Ajit Singh were tenants in the property. In the case of Inderpal Khanna Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 7 of 16 r -8- (SUPRA) Hon'ble High Court specifically observed that upon the death of original tenant, the tenancy devolves upon the legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Once the tenancy is a joint tenancy, notice to one of the joint tenant is sufficient to terminate the tenancy and the suit cannot be held to be bad for non joinder of other joint tenants or all the legal heirs of the deceased tenants. Hon'ble Delhi High Court relied upon the cases of Hon'ble Supreme Court reported as AIR 1963 Supreme Court 468 titled as Kanji Manji Vs. Trustees of Port of Bombay & Anr. case of Hon'ble High Court of Delhi reported as Mohammad Usman Vs. Surraiya Begum 1990(3) Delhi Lawyer 163.
11. In the present case before us, notice dated 5.1.2005 & 8.2.2005 is proved to have been duly served upon the appellant, therefore, it was enough service for all the other LRs. If it was the case of other LRs that they were also joint tenants, they ought to have made an application before Ld. Trial Court for their impleadment, which admittedly was never done. This fact further reinforces the truth that except the appellant, none of the Class-1 legal heirs of Ajit Singh were residing in the suit property and it is only to create a resistance in eviction/ejectment that this plea has been raised.
Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 8 of 16 r -9- After the death of contractual tenant if only the appellant continued in possession and the rent was also paid by her without objection by other heirs and the other heirs did not assert their rights in the tenancy, then the presumption arises that others have surrendered the tenancy rights. There is a presumption of implied surrender of lease U/s 111(f) of the Transfer of Property Act. This surrender can be inferred from the facts & circumstances of the present case.
12. Thus, the contention of the appellant that other Class-1 legal heirs of Ajit Singh were not impleaded as a party in the suit or that the rent was being paid on behalf of all the LRs is without any force.
13. It is next contended on behalf of the appellant that the plaintiff in his evidence admitted that the rent of the property was Rs. 2930/- per month in the year 1999-2000, and he stated in evidence that the rent was increased in January 2000 as per mutual understanding. The appellant claims that if in the year 2000, the rent was Rs.2930/-, the rent could have been increased to Rs.3220/- in the year 2003 only. And thus, the next enhancement could have been sought only in the year 2006 and not in January 2005 as claimed.
14. This contention has been raised by the appellant for the first time before this court. It was never the stand of the defendant Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 9 of 16 r
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in its written statement before the Ld. Trial Court. Rather the stand of the defendant before Ld. Trial Court was that the monthly rent was Rs.3220/- and notice of enhancement of rent from Rs 3220 to Rs.3542/- could not have been claimed by the landlord, w.e.f. January 2005. If it was the case of the appellant/tenant that the enhancement of 10% rent took place in January 2000, nothing prevented her from taking this specific stand in her written statement. That would have been appropriate since in that eventuality, even the plaintiff would have got an opportunity to disprove the stand of the tenant/appellant. Merely on the basis of one or two stray statements in the evidence, the tenant cannot now claim that the enhancement could have taken place only in January 2006 and not January 2005.
15. The appellant next argued that vide the notice dated 5.1.2005, the rent could not have been enhanced for the month of January 2005 and it could have been enhanced only w.e.f. 30 days after the notice. In this regard, the appellant has placed reliance upon the case of M/s Crack Detectives Pvt. Ltd. Vs. Sh. P.S.Malhotra 2006 (129) DLT 584. The appellant has also relied upon the following two cases regarding enhancement of rent :- National Co-op. Consumer Federation of India Ltd. Vs. Jwala Pershad Ashok Kumar Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 10 of 16 r
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Chopra 1998 AIR (Del) 308 and Atma Ram Properties (P) Ltd. Vs. Escorts Ltd. 2012 (188) DLT 126.
16. The claim of the appellant that vide notice Ex.PW1/2, the rent could not have been increased w.e.f. January 2005 is inconsequential, since in the impugned judgment also it is mentioned that in terms of Section 6A of the Act read with Section 8 of the Act, the rent stood increased only after the 30th day from the date of service of the notice. Even the Ld. Trial Court did not allow the claim of the enhanced rate of rent for the month of January 2005. Perusal of impugned judgment would reveal that even the Ld. Trial Court deemed the enhancement of rent only on expiry of thirty days i.e. w.e.f. 8.2.2005. The Ld. Trial Court specifically observed that the rate of rent stood enhanced w.e.f. 8.2.2005, since the first notice was deemed to be served upon the appellant on 8.1.2005.
17. The appellant also claimed that the notices were neither delivered upon the appellant nor its delivery were proved in accordance with law since the plaintiff was not himself present at the time when the notices were posted, therefore, when the appellant took specific objection as to the mode of proof of posting of these two notices, the land lord respondent ought to have proved these notices were sent to the appellant Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 11 of 16 r
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through proper mode. In this regard, the appellant has relied upon judgment of Hon'ble Delhi High Court in the case of Mrs. Surender Bala & Anr. Vs. M/s Sandeep Foam Industries P. Ltd DCLR 2000 (I) Delhi-543.
18. In the case of Mrs. Sunder Bala, it was held by Hon'ble High Court that presumption U/s 27 of General Clauses Act 1897 as to service of notice can be raised only if the dispatch through postal service is proved by the office of the advocate who sent the notice by registered AD. In that case, the witness who was examined was not the plaintiff but he was an attorney of the plaintiff. The said witness was not even an attorney at the time when the notice was sent. The plaintiff himself did not appear in the witness box and therefore it was held that in absence of examination of postal authorities or the lawyer who posted the notices, presumption cannot be raised. In that case, even the certificate of postal authorities was not proved in accordance with law. In absence of the certificate, there was no proof whatsoever that any notice or letter was actually sent. The said case is thus clearly distinguishable on the facts of the case.
19. In the present case, it was the plaintiff who was examined.
The notices were sent under the instructions of the plaintiff. The plaintiff even examined Sh. D. Tigga from Post Office as Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 12 of 16 r
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PW2 and Sh. B.S.Rana from another Post Office as PW3. The plaintiff tried to prove the fact that these notices were sent but PW3 deposed that the record was destroyed as to the postal receipts and PW2 proved the stamp of the post office on UPC receipt Ex.PW1/8. In the present case, the plaintiff also proved the UPC Ex.PW1/4 & 8 dated 5.1.2005 and 8.2.2005. Both these UPC certificate are on record in original. The AD Card showing service of the notice Ex.PW1/2 has been proved in original as Ex.PW1/5. The said AD card bears signatures of one Mr. Harman on 7.1.2005. Although, Mr. Harman appeared as a witness and denied his signatures on this document but admittedly no other person by the name of Harman was residing in the property, who could have signed the AD card. DW3 Harman admitted that he was living in the suit property since December 2004 and also that he signs in English language. Thus, it appears that the AD card Ex.PW1/5 is deliberately being denied by the appellant. The address on these documents is also not in dispute. In the present case, the respondent/plaintiff herself stepped into the witness box to prove the postal receipts/AD cards whereas in the case of Surender Bala, neither the plaintiff nor the advocate who had sent the notice appeared in the witness box. In the present case , it was not necessary for the plaintiff/ Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 13 of 16 r
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landlord to have examined the clerk of advocate who physically posted the notices since those notices were sent by the lawyer of the landlord under instructions of the landlord directly.
20. In such circumstances, Ld. Trial Court was completely justified in raising presumption of service of these two notices U/s 27 of the General Clauses Act as well as Section 114(f) of the Indian Evidence Act. I do not find any illegality or irregularity in drawing of presumption by the Ld. Trial Court U/s 114(f) of the Evidence Act & Section 27 of the General Clauses Act. Admittedly, both these notices were dispatched at the correct address within the State of Delhi. The registered postal receipts do get served within three working days within a city. In such circumstances, both these notices were deemed to be served upon the appellant within three days of their respective postings of 5.1.2005 & 8.02.2005.
21. The next contention of the appellant, that the respondent/plaintiff continued to receive rent at the old rate is also without any force as I have already mentioned above that it is proved to the satisfaction of the court that the deposition of rent at the old rate unilaterally by the appellant in the account of the plaintiff/respondent was objected to. It is also proved on record that the two cheques were deposited by the Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 14 of 16 r
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appellant in the account of plaintiff on 22.2.2005 and 17.3.2005, respectively, i.e. much after the date of enhancement of rent. The second cheque was deposited after filing of the suit. The plaintiff/respondent also gave a notice Ex. PW1/11 dated 16.03.2005 asking the appellant to refrain from depositing rent in the bank account and it is also mentioned in the said notice that the earlier rent deposited at old rate was without consent of the appellant. The appellant never replied to this notice. Thus, now it does not lie in the mouth of appellant to contend that the plaintiff accepted rent at old rate. Thus, there is no waiver of notice of enhancement of rent or termination of tenancy.
22. In the case of H.G.Gupta & Sons Vs. Silver Stone Motor Pvt. Ltd. & Ors 148 (2008) DLT 441, it was held that mere acceptance of payment during the pendency of suit by the plaintiff from the defendant cannot constitute acceptance of rent as contemplated U/s 116 of the Transfer of Property Act.
23. Once it is proved that the first notice dated 5.1.2005 was served upon the appellant latest by 8.1.2005, the rent stood enhanced w.e.f. 8.2.2005 and the subsequent notice terminating tenancy dated 8.2.2005 giving 15 days clear time to the appellant was perfectly valid and justified. Even the notice dated 8.2.2005 must have been served upon the Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 15 of 16 r
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appellant within 3 days.
24. I have perused the evidence and the material on record of the learned trial court. I have also carefully gone through the issue wise findings of the Ld. Trial court. I do not find any illegality or infirmity on the findings of the learned trial court as to any of the issues decided in this suit. All the findings on all the issues are well reasoned and based on correct appreciation of law and facts. Findings of all the issues are affirmed.
25. In such circumstances, the appeal is liable to fail and is dismissed. Decree sheet be prepared. TCR be sent back with a copy of this judgment. Appeal file be consigned to the record room.
Announced in the open court DIG VINAY SINGH on 26th Day of September, 2012. ADJ-04 (CENTRAL) DELHI Amarjit Kaur Vs. Ramesh Kumar Uppal RCA no. 12/10 dtd.. 26.09.2012 Pg.. 16 of 16 r