Delhi District Court
Smt. Ramrati vs Shri Bijender Gupta on 7 July, 2007
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IN THE COURT OF SHRI SANJEEV AGGARWAL:
RENT CONTROLLER : DELHI
Petition No. E-751/06
Smt. Ramrati
W/o late Pt. Yad Ram Sharma
R/o D-261, Bhajanpura,
Delhi-53. ... Petitioner
Versus
Shri Bijender Gupta
S/o Shri Sriniwas Gupta
Shop no.5, Pt. Yad Ram Market,
Tanky Road, Opp. Dispensary
Bhajanpura, Delhi-53. ... Respondent
Date of institution : 2.8.99
Judgment reserved on : 7.7.07
Date of decision : 7.7.07
JUDGMENT
Vide this judgment, I will dispose off an eviction petition on the ground under Section 14(1)(a)(g)&(j) of the Delhi Rent Control Act (hereinafter referred to as the DRC Act). However, the counsel for the petitioner Shri C.P. Tyagi, Advocate had made a statement on 5.5.07 that he is not pressing the grounds under Section 14(1)(g)&(j) of the DRC Act, accordingly the eviction petition on the ground under Section 14(1)(g)&(j) of the DRC Act was dismissed as not pressed. Accordingly, only the facts which are germane for deciding the eviction petition under Section 14(1)(a) of the Act are being reproduced hereunder.
2. It is stated that the petitioner is the landlord of the shop no.5, 2 Pt. Yad Ram Market, Tanky Road, Opp. Dispensary, Bhajanpura, Delhi and the respondent is a tenant in respect of the said shop as shown red in the site plan at a monthly rent of Rs.425/- without electricity and water connection. The respondent is stated to be an old tenant. It is stated that petitioner is a widow and landlady under the Will dated 8.12.1995 of the suit premises which was let out to the respondent initially at the monthly rent of Rs.385/- per month and lateron it was increased to Rs.425/- per month w.e.f. April, 1999 without electricity and water connection. It is alleged that the respondent had paid rent upto July, 1998 to the petitioner and lateron stopped paying rent to the petitioner despite repeated demands and requests and despite service of the legal demand notice dated 15.3.07. Hence, the petitioner was constrained to file the present eviction petition.
3. Written statement has been filed by the respondent in which the relationship of landlord and tenant between the parties is not disputed. However, the extent of tenancy premises is stated to be wrong and it is stated that correct measurement of the shop is 17"x9" ft. The service of the legal demand notice is also not denied.
4. Regarding the arrears of rent, it is stated that entire arrears of rent have already been paid to the petitioner and the same was accepted by the petitioner's sons Sri Dutt Sharma and Ravi Dutt Sharma and the receipt of the same was issued by them. It is also stated that petitioner accepted the rent without any protest upto January, 1999, but thereafter 3 when the respondent filed a case against the petitioner which is pending in the ld. Civil Court and thereafter the rent for the month of February, 1999 was sent to the petitioner's son, who refused to accept the same and thereafter the respondent finding no alternative, the rent was sent by way of demand draft and the same was accepted and thereafter the rent was paid by money orders, but the same was refused by the petitioner and thereafter finding no alternative, the respondent was constrained to deposit the entire arrears of rent under Section 27 of the DRC Act in the court of Sh. D.K. Sharma, the then ld. ARC, Delhi. Hence, it is stated that entire arrears of rent has been paid and the eviction petition is not maintainable and is liable to be dismissed.
5. Replication has been filed by the petitioner in which the averments made in the written statement have been vehemently denied and those made in the petition have been reaffirmed as correct.
6. An order under Section 15(1) of DRC Act was passed vide order dated 17.1.00 of the ld. Predecessor by virtue of which the respondent was directed to pay or deposit the entire arrears of rent w.e.f. 1.12.99 till date at the rate of Rs.425/- per month within one month and for future monthly rent at the said rate during the trial.
7. Thereafter the respondent moved an application under Section 151 CPC with the prayer to withdraw the earlier affidavit filed in the examination in chief and to file fresh amended affidavit on the record, which application was dismissed vide detailed order dated 7.8.04. 4
8. Thereafter an application under Order 6 Rule 17 CPC was moved on behalf of the respondent for amendment of para 3 of the preliminary objections, which application was allowed vide order dated 30.11.04 of the ld. Predecessor, whereby instead of filing the amended written statement, the respondent was directed to file additional written statement with the amended paras with advance copy to the opposite party subject to costs of Rs.300/-.
9. Thereafter an application under Section 15(7) of the DRC Act was moved, but the said application has not been pressed by the petitioner when the final arguments in this case were heard.
10. The petitioner in support of her case has examined her attorney and son Sh. Shiv Dutt Sharma as PW1. In rebuttal, the respondent has examined himself as RW1. He has examined one more witness Sh. Naresh Kumar another tenant in the shop no.3 as RW2. No other witness have been examined by the either parties.
11. I have heard the ld counsel for the petitioner, ld. counsel for the respondent and have perused the record. The ld. Counsel for the petitioner has also relied upon the judgment namely, 28(1985) DLT 212, and 1992(1) RCR 118.
12. To make out a case under Section 14(1)(a) of the Act, the petitioner has to prove the following ingredients :
(i) That there is a relationship of landlord and tenant between the parties
(ii) That a valid legal demand notice was duly served upon the respondent/tenant 5
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.
My findings on the above ingredients are as under :
(i) That there is a relationship of landlord and tenant between the parties.
The relationship of landlord and tenant between the parties is not disputed as the respondent has not denied para 3(a)&(b) of the petition. Accordingly, I hold that there is a relationship of landlord and tenant between the parties.
(ii) That a valid legal demand notice was duly served upon the respondent/tenant The service of the legal demand notice dated 15.3.99 is also not denied as the respondent has stated in para 18(b) of the written statement, that it is a matter of record. However, the counsel for the respondent has argued that the said legal demand notice is not at all valid demand notice, as filing of the eviction petition under Section 14(1)(a) of the DRC Act contemplates, that there should be a valid legal demand notice in the manner provided under Section 106 of the Transfer of Property Act and which is a mandatory provision and was argued in the demand notice relied upon by the petitioner, no arrears of rent have been mentioned which fact has also been admitted by the petitioner in his cross examination, therefore, it is no demand notice in the eyes of law, and therefore, the eviction petition deserves to be dismissed on the said ground alone.
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13. On the other hand, the counsel for the petitioner has relied upon the judgment 28(1985) DLT 212 H.M. Doyal Co. Vs. Ram Nath Chitkara & ors. in which it was held as under:-
"Held that according to Section 14(1)(a) of the Act a landlord is only required to send a notice demanding arrears of rent and the tenant on receipt of notice is under a duty to pay or tender the whole of the arrears of rent legally recoverable from him within two months. The only duty cast upon the landlord to send a notice demanding arrears of rent. The clause (a) of the proviso to Section 14(1) of the Act does not require that the notice of demand shall state the amount due from the tenant. A notice of demand may not mention the amount at all. It may simply ask the tenant to pay the arrears which he has not paid. As soon as a notice of demand is served, it is the duty of the tenant to pay such amount as he thinks is due from him and if ultimately it is found that the amount paid by the tenant was the correct amount, the landlord's petition for eviction will be dismissed. There can be no justification for the tenant to remain silent and not pay 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. Under Section 26 of the Act a tenant is required to pay rent within the time fixed by contract and in the absence of such contract by the 15th day of month next following the month for which it is payable. Further Section 27 of the Act provides for deposit of rent by the tenant in case the landlord does not accept any rent tendered by the tenant."
The said judgment is squarely applicable to the facts of the present case as in the legal demand notice Ex.AW1/3 in para 3, it is clearly mentioned that the respondent is regular defaulter in making payment of 7 rent. Accordingly the said notice clearly meets out all the requirements of Section 106 of the Transfer of Property Act as it is in writing, and it has been sent to the tenant through the counsel vide registered post, and further it has been held in the judgment 1960 M.P.J. J. 1241 "landlord may, in the notice, make a blank demand without mentioning how much rent is due. In such an event, the tenant will have to pay or tender what he believes to be due." and also it has been held in the judgment 1977 (2) RCJ 49 (Gujrat) "merely because notice claims more amount than due, does not make it ineffective or invalid." In view of the aforesaid proposition of law, the notice Ex.PW1/3 in para 3 of which it has been clearly mentioned that the respondent was a regular defaulter in payment of rent and it was further mentioned in the legal notice of demand asking the respondent to vacate the premises. Therefore, the respondent was clearly put to notice vide afore notice either to pay arrears of rent or to vacate the premises. Therefore, the said legal notice meets out all the requirements of Section 106 of the Transfer of Property Act and Section 14(1)(a) of DRC Act. Accordingly, it is a valid legal demand notice in view of the aforesaid settled law.
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.
It is the case of the petitioner that the respondent has not paid the arrears of rent after August, 1998 despite service of the legal demand notice dt. 15.3.99. The defence of the respondent in the pleadings and in 8 evidence is that the rent till January, 1999 has been paid to the sons of the petitioner against receipt, and the rent thereafter for the month of February, 1999 was sent to the petitioner's son, who refused to accept the same, and thereafter it was sent to the petitioner by way of demand draft and thereafter finding no alternative, it was sent by way of money order and thereafter it was deposited in the court under Section 27 of the DRC Act. AW1 has appeared as an attorney on behalf of his mother and proved the power of attorney as Ex.AW1/1. The counsel for the respondent has relied upon the judgment AIR 2005 SC 439 and has argued that evidence of AW1 is not admissible in evidence as he is only a attorney. In the said judgment it was held as under :
"The power of attorney holder does have the personal knowledge of the matter of the appellants and therefore, he can neither depose on his personal knowledge nor can he be cross examined on those facts, which are to the personal knowledge of the principal."
14. The counsel for the respondent has accordingly argued that the evidence of PW1 is not admissible in evidence, as he is only a power of attorney and in view of the said judgment, he cannot depose on behalf of the principal about the facts which are in personal knowledge of the principal. I have perused the said judgment. The proposition of law laid down in the said judgment is not in dispute. However, the said judgment is not applicable to the peculiar facts and circumstances of the case, as PW1 is none other than the son of the petitioner, and it is even otherwise the 9 case of the respondent as pleaded in the written statement that the sons of the petitioner including PW1 had been collecting the rent from the respondent. Accordingly, it cannot be said that PW1 is not conversant with the facts of the present case in afore circumstances. Accordingly, this contention of the counsel for the respondent is without any substance.
15. Regarding the arrears of rent, the petitioner has relied upon the rent receipt Ex.RW1/A by virtue of which the respondent stated that rent from 1.7.98 to 31.1.99 was paid to the son of the petitioner. In the cross examination of RW1 a suggestion was given that the said rent receipt was forged one, which suggestion RW1 has denied and further AW1 has denied in his cross examination the suggestion that during the life time of his father, he alongwith his brother Sri Dutt Sharma used to collect the rent from the respondent. Though AW1 has stated that "I do not know whether after the death of my father, my brother Sri Dutt Sharma collected the rent from the respondent". He further deposed that "I do not know whether I issued rent receipts w.e.f. 1.7.98 to 31.1.99 to the respondent". However, the respondent has failed to prove the said rent receipt, as the onus to prove the said rent receipt as per the Evidence Act was upon the respondent and the respondent should have put the said rent receipt to AW1 in the cross examination of AW1, when he stated that he does not know whether he issued the rent receipts w.e.f. 1.7.98 to 31.1.99 to the respondent and at that point of time the respondent should have confronted the AW1 that he had issued the rent receipt which was in his 10 hand writing, which was not done. It was also not proved by leading any other cogent evidence to prove that the hand writing or the signatures appearing on the said rent receipts belonged to AW1 or his brother and the hand writing and signatures on the said rent receipt could have been proved in the following manner:
(i) By proof of signatures and hand writing of the person alleged to have been signed or written the document (S. 67 of Indian Evidence Act).
(ii)By the opinion of an expert who can comapre hand writing.(S. 45 of Indian Evidence Act).
(iii)By a witness who is acquainted with the hand writing of a person by whom it is supposed to have been written and signed (S. 47 of Indian Evidence Act).
(iv)By comparison of signatures, writing or seal with others admitted or proved (S. 73 of Indian Evidence Act).
Further as per the Evidence Act, "it is a letter it must be shown who wrote it or any rate who signed it, for signatures to a document, turns the whole document into a statement who signs it."
Accordingly, as the respondent has failed to prove the said rent receipt as per law, whereby it was alleged by respondent that he had paid the rent to the sons of the petitioner, vide rent receipt for the period 1.7.98 to 31.1.99 and the onus was always upon the respondent/tenant that he had paid arrears of rent as per the judgment 1992(1) RCR page 118 relied upon by the petitioner, which is squarely applicable to the facts of the present case. Though the respondent has been able to prove that 11 the rent for the month of February, 1999 was received by the petitioner, as AW1 has stated in his cross examination that, it may be possible that the petitioner received the rent for the period February, 1999 sent by the respondent by demand draft and further the respondent has also been able to prove that the rent for the month of March, 1999, was also sent, but it was refused by the mother of AW1 i.e. the petitioner, which fact AW1 has admitted in his cross examination. However, the respondent in order to get a discharge from the legal demand notice had to pay or tender the entire arrears of rent within two month from the receipt of the legal demand notice, which has not been done. Accordingly, the respondent is held to be in default.
16. Regarding the extent of premises, it is defence of the respondent as made out in the written statement that correct measurement of the shop is 17ft.x9ft. However, in cross examination, RW1 has admitted that "it is correct that site plan Ex.AW1/2 is of the shop which is under my tenancy. I had not filed any site plan in respect of the suit premises." In view of the aforesaid admission made by the respondent in his cross examination, the petitioner has been able to prove that the site plan filed by him on the record which is Ex.AW1/2 is correct as shown in red and it also shows the correct measurement of the shop. Accordingly, the petitioner has been able to make out a case under Section 14(1)(a) of the DRC Act and order under Section 15(1) of the DRC Act has to be modified.
17. The net result of the aforesaid discussion is that the petition 12 under Section 14(1)(a) of the Act is held successful. The order under Section 15(1) of the DRC Act dated 17.1.00 is accordingly modified and respondent is directed to pay or deposit the entire arrears of rent at the rate of Rs.385/- per month w.e.f. August, 1998 till January, 1999 within one month from the date of this order. However, in order to ascertain the entitlement of the respondent viz-a-viz benefit of Section 14(2) of the DRC Act, the report of the Naib Nazir be called regarding compliance of order U/S 15(1) of DRC Act for 18.8.07, for which a separate misc. file be prepared by the Ahlmad and put up on said date. This file be consigned to record room.
Announced in open court (SANJEEV AGGARWAL)
on 7.7.07. Rent Controller : Delhi
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Petition No. E-751/06
7.7.07.
Present : None.
Vide separate detailed judgment of even date, the eviction petition under Section 14(1)(a) of the Act is held successful. The order under Section 15(1) of the DRC Act dated 17.1.00 is accordingly modified and respondent is directed to pay or deposit the entire arrears of rent at the rate of Rs.385/- per month w.e.f. August, 1998 till January, 1999 within one month from the date of this order. However, in order to ascertain the entitlement of the respondent viz-a-viz benefit of Section 14(2) of the DRC Act, the report of the Naib Nazir be called regarding compliance of order U/S 15(1) of DRC Act for 18.8.07, for which a separate misc. file be prepared by the Ahlmad and put up on said date. This file be consigned to record room.
(SANJEEV AGGARWAL) Rent Controller : Delhi