Delhi District Court
Sh. Nafees Ahmed vs Sh. Saiful Islam on 1 October, 2021
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IN THE COURT OF SH. MANOJ KUMAR, ARC-1, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Eviction Petition No. E-3/2013 (New No.79246/16)
Unique Case ID/CNR no. DLCT03-001519-2013
Sh. Nafees Ahmed
S/o Late Sh. Ahmed Din
R/o 1662-63/VI,
Gali Madarsa Mir Jumla,
Lal Kuan, Delhi-110006
...Petitioner
VERSUS
Sh. Saiful Islam
S/o Sh. Mohd. Suleman
R/o H.No.2182. Rodgran,
Lal Kuan, Delhi-110006
...Respondent
Date of Institution of Petition : 07.01.2013
Date on judgment reserved : 03.05.2021
Date of Judgment pronounced : 01.10.2021
JUDGMENT
1. This judgment shall decide eviction petition under Section 14(1)(a) &
(c) & (j) filed by the petitioner against the respondent. Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 1 of 22
//2// Petitioner's case
2. It is stated that the petitioner is the owner of suit premises i.e. 2182, Ward No.VII, Rodgran, Lal Kuan, Delhi-110006, more specifically shown in red colour in the site plan filed with the eviction petition (hereinafter referred to as 'tenanted premises'). It is stated that monthly rate of rent is Rs.35/- excluding other charges.
3. It is stated by the petitioner that suit property was purchased by the petitioner from previous owner namely Late Sh. Sheikh Mohd. Jaan vide sale deed dated 05.06.2000 and the same was registered on 14.06.2000 before the concerned Sub-Registrar, Delhi. It is further stated that the respondent is the tenant in respect of one room and kitchen at first floor in above said property which is shown in red colour in the site plan. The respondent made addition/alterations and structural changes in the tenanted premises without the consent of the petitioner and he has constructed a bathroom on the roof of the first floor and covered the open roof/space by constructed a room illegally which is shown in green colour in the site plan.
Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 2 of 22
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4. It is stated by the petitioner that petitioner has already terminated the tenancy of the respondent vide legal notice dated 28.02.2001 in respect of suit premises. It is further stated that the respondent is a habitual defaulter in payment of monthly rent and he has not paid rent to the petitioner despite the service of legal notices dated 28.02.2001 and 06.02.2012 on one pretext or the other. He neither paid nor tendered the whole of the arrears of the tent recoverable from him within two months from the date of which a notice of demand for arrears of rent has been served upon the respondent.
5. It is stated by the petitioner that suit premises was let out to the respondent for residential purpose by the previous owner, but the respondent has started misusing the premises for commercial purposes also. The respondent and his wife are also dealing in the business of shoes from the tenancy premises illegally. It is further stated that a flat bearing no.189-C/3, Railway Colony, Vasant Road, Pahar Ganj, New Delhi has been allotted by the railway to the respondent, which has been let out by the respondent illegally to another person.
6. The petitioner has prayed that eviction order may be passed in respect of the tenanted premises in terms of section 14 (1) (a)(c) & (j) of the Delhi Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 3 of 22 //4// Rent Control Act.
Respondent's case
7. Upon being served with the summons, respondent filed written statement therein denying the petitioner's case. It is stated that the site plan of the suit property is incorrect and not according to the tenanted premises. It is further stated that the petitioner is not the owner of the property in question and the present petition is filed malafidely. It is further stated that the respondent is continuously depositing the rent through DR No.121/2012 and DR No.09/2013 for the period of 1 st May, 2009 to 30th April 2012 and also for the period of 01.05.2012 to 31.12.2013 in the Court of Sh. Sanjeev Kumar Singh, Ld. ARC, Delhi. It is further stated that the notice dated 06.02.2012 as mentioned by the petitioner was not served upon the respondent. It is further stated that the allegations made by the petitioner against the respondent for non-payment of rent and misuse of the property in question and also for addition and alteration in the tenanted premises are wrong. It is further stated that no addition, alteration or structural changes has been made by the respondent nor have constructed any bathroom on the roof of the first floor or covered the open roof/space by constructed a room illegally. The tenancy of Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 4 of 22 //5// the respondent is in the same position as it was let out to him on rent from previous owner Sh. Sheikh Mohd. Jaan.
Petitioner's case as per Replication
8. Petitioner filed the replication wherein the averments of the eviction petition were reiterated and reaffirmed and those of the written statement were denied as false and incorrect. It is further stated that the respondent has filed wrong site plan with some ulterior motive. It is further stated that petitioner is the lawful and exclusive owner of the suit property. It is further stated that respondent has made additions/alterations and structural changes in the tenanted premises without the consent of the petitioner. Evidence led by the parties
9. In order to prove the case, petitioner examined himself as PW1. He tendered his evidence by way of affidavit as Ex.PW-1/A. He relied upon documents which are Ex.PW1/1 to Ex.PW1/9.
10. Sh. Prahlad was examined as PW-2. He proved the inspection report of property bearing no.2173-89, Ward-II, Rodgran, Lal Kuan, Delhi-110006 Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 5 of 22 //6// exhibited as Ex.PW2/1 (colly).
11. Respondent examined himself as RW-1. He tendered his evidence by way of affidavit as Ex.RW-1/A and additional evidences exhibited as Ex.RW1/B. He relied upon documents which are Ex.W1/1 to Ex.RW1/5 (OSR). Ex.RW1/4 de-exhibited as mark-A.
12. Sh. Anand Kumar, JJA Record Room, Civil, THC was examined as RW2. He brought the summoned record i.e. file bearing DR No.121/12 titled as Saiful Islam Vs. Nafis Ahmed bearing goshwara no.04 RC (Central). He also brought another file bearing DR No.9/13 titled as Saiful Islam Vs. Nafis Ahmed bearing goshwara no.128 RC (Central).
13. Sh. R.R. Meena, SSE/Eviction, DRM Office was examined as RW3. He brought the summoned record i.e. file register maintaining the records of Estate (quarter section). He proved the photocopy of the register bearing page no.44 in the register-IV occupation and vacation of Railway Quarters as Ex.RW3/1 (OSR).
Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 6 of 22
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14. Mohd. Noor Alam was examined as RW4. He proved the site plan Ex.RW1/1.
15. I have heard arguments and carefully gone through the record. Ownership of tenanted premises and relationship of landlord-tenant between petitioner and respondent :
16. Petitioner submitted that he is the lawful and exclusive owner of the property bearing no.2182, Ward No.VII, Radgran, Lal Kuan, Delhi-110006 which he has purchased from his previous owner namely Sheikh Mohd. Jaan vide sale deed dated 05.06.2000 which got registered on 14.06.2000. The respondent admitted that he is the tenant in the suit premises and the tenancy was created by Sheikh Mohd. Jaan. Petitioner in his cross-examination specifically stated that respondent was the tenant in the property when he purchased the same. The petitioner filed the certified copy of the sale deed Ex.PW1/1. Respondent in his cross-examination stated that the tenancy was created in the year 1994 by the previous owner and the rent agreement was also executed. He also stated that rent receipt was issued by the previous owner in the year 1994.
Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 7 of 22
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17. At one place, RW1 specifically stated that he considered the petitioner as an owner of the tenanted premises and he is the tenant in respect of tenanted premises. At another place, he stated that rent agreement was not executed between him and the previous owner Sheikh Mohd. Jaan and he again stated that he does not remember the rent agreement was executed or not. He again contradicted himself and stated that Sheikh Mohd. Jaan was the landlord. Thus, the testimony of RW1 regarding creation of tenancy and the execution of the rent agreement is self contradictory. Moreover, law is well settled in this regard. The tenant cannot challenge the ownership of the petitioner.
18. The petitioner had filed the registered sale deed. Nothing has been brought by the respondent to disprove that petitioner is not the owner of the property. The respondent also not filed the rent receipt issued in favour of the earlier owner and once, the petitioner had proved that he has purchased the premises from the earlier owner, then it cannot be said that petitioner is not the owner and landlord of the property.
Thus, I am satisfied that petitioner is the owner of the property and there is landlord-tenant relationship between the parties. Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 8 of 22
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19. The petitioner has mentioned in his petition that he has filed an application under Section 19(1)(a) of the Slum Areas (Improvement & Clearance Act, 1956) and the same was allowed and permission was granted to the petitioner to initiate the eviction proceedings against the respondent vide order dated 28.09.2012. The petitioner has proved the order of Slum Authority and the same is Ex.PW1/9. Perusal of the said Ex.PW1/9 shows that petition under Section 19 of the petitioner was allowed and permission was granted to the petitioner to initiate eviction proceedings. Thus, I am satisfied that present petition is maintainable as permission under The Slum Act has already been taken by the petitioner.
Ground of eviction u/s 14 (1) (c) of the Delhi Rent Control Act.
20. In order to succeed in a petition for eviction filed under section 14 (1)
(c) of the Delhi Rent Control Act, the petitioner must establish that:-
"that the tenant has used the premises for a purpose other than that for which they were let :
(i) if the premises have been let on or after the 9 th day of June, 1952, without obtaining the consent in writing of the landlord; or Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 9 of 22 //10//
(ii) if the premises have been let before the said date without obtaining his consent;
21. The petitioner in his petition in column no.4 described the premises as residential. Respondent in his written statement has not denied the contents of para no.4. He admitted that the premises was given on rent for residential purposes. Petitioner contended in his petition that premises was let out to the respondent for residential purpose by the previous owner, but the respondent has started misusing the premises for commercial purposes. He contended that the respondent and his wife are dealing in the business of shoes from the tenanted premises illegally. The respondent denied the contents of corresponding para in his written statement. Petitioner in his cross- examination stated that he has no proof regarding the business of the shoes running by the respondent from the suit premises. He voluntarily stated that respondent has accepted the same in his reply exhibited as Ex.PW1/4. Perusal of the Ex.PW1/4 shows that the respondent stated that tenanted premises was given on rent by one Sheikh Mohd. Jaan for residential-cum- commercial purposes at a monthly rent of Rs.35/-. However, as already discussed above, the respondent already admitted in his written statement that premises was given on rent for residential purposes. Thus, there is no Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 10 of 22 //11// doubt that the premises was given on rent for residential purposes only. Moreover, respondent in para no.6 of his evidence by way of affidavit which is exhibited as Ex.RW1/A also stated that tenancy of the respondent was created for residential purpose. The petitioner admitted that he has not made any complaint regarding the misusing of the property to any authority. Thus, there is nothing on record which shows that respondent was doing the business of shoes from the residential premises. Petitioner has not brought anything on record which support the contention of running of business from the premises.
Thus, the contention of the petitioner for the eviction under Section 14(1)(c) of Delhi Rent Control Act is accordingly rejected. So, petition under Section 14(1)(c) of Delhi Rent Control Act is hereby dismissed.
Ground of eviction u/s 14 (1) (j) of the Delhi Rent Control Act.
22. Section 14 (1) (j) of the Delhi Rent Control Act is reiterated :-
"that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises;Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 11 of 22
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23. The petitioner contended in his petition that the respondent has raised unauthorized and illegal construction without the consent of the petitioner. The respondent constructed a bathroom on the roof of the first floor and covered the open roof/space by constructed a room illegally which is shown in green colour in the site plan exhibited as Ex.PW1/2. Instead of denying the submission, respondent contended in the written statement that he is the old tenant in the said premises consisting of two rooms, kitchen, toilet, open space covered with Jaal on first floor and one room and bathroom and open space on the second floor of property. He denied that addition, alteration or structural changes has been made by him. He contended that he has not constructed any bathroom on the roof of first floor and neither covered the open roof/space by constructing the room illegally.
24. One Prahlad, UDC, House Tax Department, MCD was examined by the petitioner as PW2 who has brought the summoned record i.e. inspection report of the property and as per the inspection report of the year 1971, the details of the accommodation of the property bearing no.2182, First Floor, Rodgran, Lal Kuan, Delhi-110006 consists of one room, one kitchen, one store and one bathroom and the said report is Ex.PW2/1. He stated that property was in the name of Mohd. Ishak in the year 1971. The witness also Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 12 of 22 //13// admitted that he has not brought the record of the property after the year 1971. The inspection report was prepared in the year 1971 when it was under
the tenancy of Goverdhan Dass whereas respondent contended that his tenancy was created in the year 1994. Thus, there is a huge time gap.
25. The respondent in his cross-examination stated that Ex.PW1/2 is the correct site plan. The respondent got examined RW4 who has prepared the site plan Ex.RW1/1. In cross-examination of RW4, he stated that he cannot tell the date, month and year when he visited at the spot for the preparation of the site plan Ex.RW1/1. RW4 has not produced the license from the MCD regarding preparation of site plan. RW4 has not brought the rough sketch of the site plan and stated that same has been destroyed. Thus, the testimony of RW4 does not inspire confidence of the Court. It raises doubt as to how the site plan Ex.RW1/1 got prepared. The respondent failed to prove that RW4 prepared the site plan after visiting the site. Thus, no reliance can be placed on such a site plan.
26. In answer to the specific question, the respondent stated that he could not produce any proof regarding the accommodation mentioned in para no.6 of evidence by way of affidavit of respondent. The site plan relied by the Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 13 of 22 //14// petitioner duly proved and no question asked during the cross-examination of PW1 regarding the said site plan. The said site plan was admitted by the respondent in his cross-examination, so the site plan Ex.PW1/2 can be relied upon.
27. RW1 has filed the copy of the judgment in suit titled as "Nafees Ahmed Vs. Saiful Islam & Ors.". The same is exhibited as Ex.RW1/5. The passing of the judgment was not denied by the petitioner. The said suit of the petitioner was dismissed by the Court of Ld. Addl. Sr. Civil Judge on 07.10.2016. One of the issue in that suit pertains to the unauthorized construction in the suit property. Court observed that the construction in the tenanted premises was not made within the period of three years of filing of the suit and consequently, the said suit was dismissed by the Ld. Court. Thus, it is apparent that there is specific findings by the Civil Court that respondent herein has not carried out any construction in the suit premises between the period 2010 to 2013.
28. Legal notice Ex.PW1/3 dated 28.02.2001 sent by the Ld. Counsel for the petitioner to the respondent shows that respondent is a tenant in respect of one room, latrine, kitchen on first floor of property on a monthly rent of Rs.35/-. However, respondent in Ex.PW1/4 denied the corresponding para of Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 14 of 22 //15// notice and stated that he is the tenant in respect of two rooms, kitchen, toilet, open space covered with jaal on first floor and one room, bathroom and open space on second floor of the property. However, Ex.PW1/1 which has been duly proved during the testimony of petitioner shows that property municipal bearing no.2182 is under the tenancy of Mohd. Saiful Islam consists of one room, one kitchen on first floor for residential purpose.
The Hon'ble High Court of Delhi in "Suraj Prakash Chopra Raj Kumar Vs Baij Nath Dhawan & Anr." 2003 III AD Delhi 705 has laid down the following preposition of law :-
(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
(iii) tenant has made his construction without the consent of landlord;
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 15 of 22 //16// regard to the purpose for which the premises have been let out;
(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii) an eviction order under Clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation aspect of the building;
(ix) a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and that each case would depend upon its own facts; and
(xi) the impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant.Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 16 of 22
//17//
29. Thus, there is no material on record to show that addition and alteration in the tenanted premises is carried by the tenant. The petitioner fail to bring anything on record which show when the said addition/alteration was done in the tenanted premises. The respondent was an old tenant. Nothing has been brought on record to show that construction was made without the consent of landlord. More importantly, the petitioner has not averred in his petition that by constructing the portion as mentioned in his petition, the tenant has caused substantial damage to the demised premises. The petitioner has failed to prove by cogent evidence, the substantial damage caused to the demised premises. Nothing has been brought on record to show that nature and character of the tenanted premises got changed due to the alleged construction. Thus, when the evidence of the petitioner read in the light of the above stated decision of the Hon'ble High Court of Delhi, then it leads to the conclusion that petitioner failed to show that respondent constructed the alleged portion as mentioned in site plan Ex.PW1/2. Petitioner further failed to show that the alleged construction substantially damaged the tenanted premises.
30. So, petitioner failed to satisfy the ingredients of Section 14 (1)((j) of Delhi Rent Control Act. Hence, the petition under Section 14(1)(j) of the DRC Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 17 of 22 //18// Act is dismissed.
Ground of eviction u/s 14 (1) (a) of the Delhi Rent Control Act.
31. In order to succeed in a petition for eviction filed under section 14 (1)
(a) of the Delhi Rent Control Act, the petitioner must establish that:-
"that 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 of him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882.
32. The petitioner has given the legal notice to the respondent exhibited as Ex.PW1/3 in the year 2001 and reply to the said legal notice sent by the respondent Ex.PW1/4. Perusal of the Ex.PW1/3 shows that petitioner demanded arrear of rent with effect from 01.01.1998 @ Rs.35/- per month. Ex.PW1/4 shows that respondent contended that petitioner is not entitled to claim rent. Notice dated 06.02.2012, postal, courier receipts and unserved notice are exhibited as Ex.PW1/5 to Ex.PW1/8.
33. The respondent in his cross-examination admitted that the address Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 18 of 22 //19// mentioned on Ex.PW1/5 i.e. legal notice dated 06.02.2012 is the address of the tenanted premises. The courier receipt Ex.PW1/7 also shows that the courier was booked on 06.02.2012. It is evident from the envelope Ex. PW- 1/8 that the legal notice was sent at the correct address of the tenanted premises. The Hon'ble Supreme Court in the case of "M/s. Madan and Co. Vs Waszir Jaivir Chand" AIR 1989 SC 630 held that when a legal notice is sent through post at the correct address and is returned due to non-availability of the addressee, it is presumed to have been delivered to the addressee u/s 27 of the General Clauses Act. It was held that all that a landlord can do to comply with the provision of sending notice is to post a prepaid registered letter containing the tenant's correct address and once the letter is sent, he has no control over it. Therefore, in the present case, service of notice of demand Ex.PW1/5 in the manner as provided in section 106 of the Transfer of Property Act has also been proved by the petitioner.
34. Respondent has filed the certified copy of order dated 06.12.2012 and 22.03.2013 in case titled as "Saiful Islam Vs. Nafees Ahmed" and the same is exhibited as Ex.RW1/2 & Ex.RW1/3. Perusal of Ex.RW1/2 & RW1/3 shows that application for deposition of rent of the respondent/tenant was allowed by the Ld. ARC. The summoned record of the above two cases also got proved Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 19 of 22 //20// by RW2. The petitioner admitted that respondent is paying the rent to him in his bank account after the passing of the order by the Hon'ble Court. The RW1 in his cross-examination admitted that he has not sent the money order in respect of the rent of the tenanted premises to the petitioner before the year 2012. He further stated that he cannot tell the exact date and month of the year 2012 when he sent the money order to the petitioner. The Ex.PW1/5 shows the date of legal notice as 06.02.2012. The onus was on the respondent/tenant to show that he paid/deposited arrears of rent within two months of the service of notice dated 06.02.2012. However, nothing has been produced on behalf of tenant/respondent to show that any rent was paid/deposited by the respondent before the filing of the DR petition on 09.05.2012. Thus, even considering the DR petitions, it cannot be said that the whole of the arrears of the rent was paid or tendered by the respondent within two months of the service of notice Ex.PW1/5 dated 06.02.2012. However, in Ex.PW1/5, the petitioner has not raised the rent by any specific amount. He simply stated that respondent is liable to pay enhanced rent. 35 Thus, the petitioner is able to prove that tenant not paid 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 upon him Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 20 of 22 //21// by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882.
36. In view of the foregoing, it is held that the petitioner has succeeded in establishing the case u/s 14(1)(a) of the Delhi Rent Control Act against the respondent.
37. As it is a case of first default, eviction order u/s 14 (1) (a) of DRC Act cannot be passed straight away without affording the opportunity to the respondent to the benefit of section 14 (2) of DRC Act.
38. An order u/s 15 (1) of DRC Act was passed on 19.08.2013 whereby respondent was directed to pay or deposit arrears of rent @ 35/- per month with interest @ 15% per annum from 05.01.2010 within one month. The above stated order under Section 15(1) of Delhi Rent Control Act is modified and respondent is directed to pay arrears of rent @ Rs.35/- per month w.e.f. February, 2009 till today along-with interest @ 15% per annum. 39 Needless to say that the amount which has already been deposited/paid by the respondent to the petitioner shall stands adjusted. Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 21 of 22
//22//
40. Ahlmad is directed to prepare a separate file for the consideration of benefit u/s 14 (2) of DRC Act. Nazir is also directed to file report on 13.12.2021 regarding compliance of order u/s 15 (1) of Delhi Rent Control Act as passed today.
File be consigned to record room. Digitally
signed by
Manoj
Manoj Kumar
Kumar Date:
2021.10.01
(MANOJ
17:32:26 KUMAR)
+0530
ARC-I, Central District,
Tis Hazari Courts, Delhi.
(Announced in open court
on 01.10.2021)
Eviction petition bearing E No.3/2013 (New No.-79246/16) Page 22 of 22