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Delhi District Court

This Is A Petition Filed Under Provision ... vs Unknown on 24 December, 2014

                        IN THE COURT OF SH. SHAILENDER MALIK 
               SCJ­CUM­RC (N/W) : ROHINI COURTS : DELHI
E No. 15/08/07/05


Kehar Singh Saini
S/o Late Sh. Harlal
R/o A­62, Village Naharpur
Delhi­85

VS

RL Jain
Through LRs:
Nirmal Jain
W/o Late Sh. RL Jain

Sanjay Jain
S/o Late Sh. RL Jain

Sandeep Jain
S/o Late Sh. RL Jain

All R/o 72/40, gali no. 1
Nr. Ind. Area, West Punjabi Bagh, 
New Delhi
IInd address
Shop no. 110, Harlal Market, 
Village Naharpur, Delhi­85

Date of institution:                   .......   23.05.2005

Date of reserving order:               .......   16.12.2014

Date of announcing order:              .......   24.12.2014 

                                                               Page No. 1/11
 JUDGMENT

This is a petition filed under provision of Section 14 (1)(a) of DRC Act seeking eviction of respondent on account of non­payment of rent. Present petition has been filed in respect of property, shop no. 110, Harlal Market, Village Naharpur, Delhi. Said shop have been let out by the petitioner for non­residential purpose. It is stated that petitioner is landlord/owner of the above said shop forming party of property comprised in khasra no. 215 of Village Naharpur and respondent stated to be a tenant in the above said shop as shown red in the site plan annexed. Tenancy was agreed under an oral agreement and at the time of filing the petition the rate of rent was Rs. 330/­ per month. It is alleged that respondent has not made the payment of rent despite repeated requests and demands of the petitioner. Therefore, a legal demand notice dated 22.12.2004 was issued to respondent through registered AD and UPC at the residential address as well as the shop address of respondent. Registered AD of the above said legal demand notice addressed to the residence of the respondent returned back with the remarks of Post Office "no such person at this address", however UPC sent on the above said address has not been returned. Registered AD and UPC send to the tenanted shop address also returned back with the remarks "shop is closed". It is stated that even after the service of legal demand notice respondent has failed to pay a single penny towards arrear of rent, legally recoverable within the statutory period of 2 months from the date of service.

It is alleged that respondent has been in arrear of rent since 01.10.1994 to 30.09.1996 @ 300 per month (total amount of Rs. 7200/­). After service of legal notice dated 27.08.1996 for payment by 10 % enhancing of rate of arrear of rent from 01.10.1996 to 31.01.2005 @ Rs. 330/­ per month (total amount of Rs. 33000/­) and thereafter rent @ 363/­ per month till the filing of the present petition (total amount of Rs. 40926/­). It is stated that respondent is liable to pay the interest @ 15 % on the arrears of rent as respondent has failed to make the payment of rent despite service of legal demand notice dated 22.12.2004. It is however stated that previously also a legal notice dated 27.08.1996 was served on respondent and after receiving of said notice on 02.09.1996 respondent has not complied with the requests/demand of rent as made in that notice. Hence, the present petition seeking eviction/possession of tenanted show in terms of the provisions of Section 14 (1)(a) of DRC Act.

Respondent filed the WS taking the objection that petition is bad for non­ joinder of necessary parties as petitioner Kehar Singh is not the only owner/landlord of the tenanted premises. Suit property falls in khasra no. 215, of Village Naharpur which are jointly owned by petitioner and his brothers Bhagwan Singh, Sher Singh both sons of Harlal Singh, nephews namely Sandhu Ram, Kaptan Singh both sons of Mihir Singh, as such petitioner alone has no right, interest or locus­standie to institute the present petition. Moreover, other owners of the property in question have served a notice dated 13.01.2005 to all the tenants in the khasra no. 215 of Village Naharpur to the fact that rent of the tenanted premises should not be paid to petitioner as suit for partition was filed by the petitioner against other LRs being suit no. 316/95 and said suit has already been dismissed on 04.09.1997 by the court of Ld. Commercial Civil Judge, Delhi, as such petitioner has not right to collect the rent of the tenanted premises.

It is however pleaded that property in question was let out on 14.02.1990 and at the time of letting out the said tenanted premises a security amount of Rs. 50000/­ was paid by the respondent to the petitioner in the presence of other shopkeepers however no receipt was executed by the petitioner. It is stated that rate of rent of said premises was Rs. 50 per month excluding electricity and water charges and respondent has been making the payment of rent regularly to the petitioner at the agreed rate of rent i.e. Rs. 50 per month. Rent of the tenanted shop stand paid till November 2004. however, petitioner has not been issuing the rent receipt since the beginning. It is further pleaded that it was agreed between the parties that tenancy will start from first day of each calendar month and will come to an end on the last day of each calendar month. After receipt of legal notice dated 13.01.2005 served on behalf of other LRs through GD Gupta, advocate, petitioner alone is not entitled to receive rent. It is pleaded that petitioner has not approached the court with clean hands and has falsely alleged the rate of rent to be Rs. 330/­ per month. It is stated that actually rate of rent is Rs. 50/­ per month excluding other charges and petitioner has never served any demand notice and alleged in the petition vide notice dated 27.08.1996 or other notice dated 22.12.2004. It is stated these two notices have never been received to the respondent and respondent has been using the tenanted premises Page No. 3/11 as a godown and has been regularly visiting the premises. No notice has ever been got served by the petitioner. Even otherwise, petitioner has not served any valid or legal notice hence petition is liable to be dismissed on this count.

While denying the averrment of the petition on merits it is however reiterated that petitioner is not the only landlord of the property in question whereas Bhagwan Singh Lrs of Harlal Singh and Sandhu Ram and Kaptan Singh both sons of Mihir Singh are also the co­owner of the property in question. It is pleaded that the correct address of the respondent is 40/72 Punjabi Bagh West, New Delhi, and not 72/40 Punjabi Bagh West, New Delhi as mentioned by the petitioner. It is further admitted that tenancy was oral and tenanted premises was let out on 12.02.1990.

Respondent was earlier proceeded ex­parte and considering the pleadings as come on the record ld. Predecessor f this court vide order dated 25.03.2008 taking note of the facts pleaded and the documents including rent receipts etc. gave the directions to the respondent for payment of arrear of rent @ Rs. 330/­ per month for a period of 3 years proceeding to the filing petition.

In the meantime upon an application moved on behalf of respondent, ex­parte order was recalled. Subsequently, respondent had expired during the pendency of the present petition, therefore, vide order dated 19.01.2010 LRs of the deceased respondents were taken on record.

Ld. Predecessor of this court vide order dated 25.11.2010 gave directions within the provisions of Section 15(1) of DRC Act to pay rent @ Rs. 50/­ per month excluding electricity and water charges being admitted rent for period of 3 years prior to the filing of the present petition.

On behalf of petitioner one witness PW1 was examined and on behalf of respondent two witnesses were examined RW1 is JC Behl and RW2 is Sanjay Jain.

I have heard ld. Counsel for petitioner, on behalf of respondent and I have also gone through the written arguments filed on behalf of petitioner.

Before we discuss the facts and evidence of present case, it is appropriate at this stage to mention the necessary facts required to be proved for seeking eviction order under Section 14(1)(a) of DRC Act. The landlord for getting an eviction order under clause (a) has to prove that the tenant is in arrears of rent and despite service of notice demanding arrears of rent the tenant has neither paid nor tendered the entire legally recoverable. For establishing the ground following facts have to be proved; (i) relationship of arrear of rent legally recoverable on the date of service of notice of demand; (ii) Service of notice of demand; (iii) that the tenant failed to pay or tender the entire legally recoverable arrears of rent within two month's from the date of service of demand notice.

Thus, cause of action on ground of non payment of rent consists of demand and the failure of the tenant to pay or tender within two months. The landlord thereafter, may file a petition for eviction of the tenant on the ground of non payment of rent. The tenant is again granted an opportunity to protect himself against eviction. Provision is made under Section 15(1) of the Act requiring the Controller to order the tenant either to pay to the landlord or deposit the arrears of rent within one month from the date of order and to continue to pay or deposit further monthly rent by the 15th of each succeeding month. If a tenant complies with such an order under Section 15(1) of the Act in its entirely, Section 14(2) of the Act comes into action. Section 14(2) of the Act provides that no order for recovery of possession should be passed under Section 14(1)(a) if the tenant has deposited or paid rent in accordance with order under Section 15 of the Act.

Keeping above mentioned legal requirement in mind, let us now examine the facts and evidence of the present case. As stated above petitioner Kehar Singh Saini has appeared as PW1 who in his affidavit of examination in chief has testified all those facts as discussed above. PW1 testifies that respondent was tenant in respect of shop no. 110, Harlal Market, Village Naharpur, Delhi forming part of premises in khasra no. 215 of the same village, site plan is Ex.PW1/1, at the time of filing the petition rent was Rs. 330/­ per month excluding other charges. PW1 says that respondent has been in arrear of rent since October 1994 and since respondent has been defaulter in payment of rent a legal demand notice dated 22.12.2004 Ex.PW1/2 Page No. 5/11 was served upon respondent at the shop in question as well as at residential address. Postal receipts are Ex.PW1/3 to 5. PW1 testifies that registered AD sent at the address of respondent was received back with endorsement "no such person at this address"

which is Ex.PW1/6 whereas UPC had not received back. Registered AD and UPC sent at the shop were received back are Ex.PW1/7 and 8. PW1 says that legal notice was also duly served by way of affixation on the tenanted shop and photographs are Ex.PW1/9. PW1 further testifies that even earlier another legal notice dated 27.08.1996 Ex.PW1/10 was served upon respondent and postal receipts are Ex.PW1/11 and 12 at the residential address of respondent. PW1 also deposed and proved regarding payment of rent for month of August and September 2004, the counterfoils of rent receipts are Ex.PW1/13 and 14.

At the time of recording evidence of PW1 an objection was raised so far as documents exhibited as PW1/13 to 15 on the ground of being beyond pleadings. Since, this issue was kept open to be decided while appreciating the evidence, reading the pleadings in totality would indicate that defendant in his WS, preliminary objection no. 2 has admitted the letting out of the shop on 14.02.1990 however has further pleaded that at that time a security amount of Rs. 50000/­ was paid by the respondent to the petitioner without any receipt of security amount. It is also stated in the pleadings of respondent that rate of rent has been Rs. 50/­ excluding other charges and respondent has been making the payment of agreed rent @ Rs. 50/­ per month till November 2004. Thus, reading the pleadings in totality would clearly indicate that so far as in pleadings tenancy has not been disputed and therefore in such situation the evidence of PW1 regarding issuance of rent receipt and counterfoils Ex.PW1/13 to 15 cannot be stated to be beyond the pleadings.

Let us now proceed further to examine the facts and evidence of the present case in the light of submissions made by ld. Counsels for the parties. It was argued by ld. Counsel for petitioner that necessary ingredients to establish the eviction order in terms of Section 14 (1)(a) of DRC Act have been duly proved as it is established on the record that respondent despite being served with the legal demand notice has failed to make the payment of arrear of rent within 2 months from date of service. Rather, respondent has not made the payment of rent till date. It is argued that though Page No. 6/11 in the pleadings of respondent tenancy has not been disputed but a contradictory case has been tried to be portrayed in the evidence which is against the pleadings. On the other hand, counsel for the respondent submits that petitioner has failed to establish case for eviction for the simple reason that landlord tenant relationship has not been proved by the petitioner as one of the essential ingredient. It is established on the record that in fact respondent was not occupying the shop in question as tenant. Evidence of RW1 and RW2 will make it clear that in fact shop in question owned by respondent and Rs. 50000/­ was given as "pagdi" in respect of the shop and Rs. 50/­ were being paid only as maintenance amount therefore, in the absence of any evidence to establish landlord tenant relationship petition is liable to be dismissed. It is further argued that rent counterfoils and ledger Ex.PW1/13 to 15 are fabricated documents.

Having considered the evidence of PW1 in totality, it would be clear that though PW1 has been cross examined regarding non existence of any rent agreement but PW1 has consistently testified that tenancy was created under an oral agreement and respondent has been making the payment of rent earlier. Similarly, with regard to documents Ex.PW1/13 to 15 though PW1 at one stage has stated that these receipts/counterfoils bear his signatures whereas in the cross examination itself he subsequently denied that counterfoils do not bear his signatures. PW1 has also clarified that he had not served any notice or has not filed eviction petition at initial stages despite rent being in arrear as alleged. On this aspect witness in his cross examination has clarified that he did not file the eviction petition earlier in order to avoid litigation and also because of assurance given to him by the respondent for clearing the arrear of rent.

Considering the evidence of PW1 I do not find anything substantive could come out to disbelieve his testimony, in the light of necessary ingredient required to be proved for making out a case of eviction under Section 14 (1)(a) of DRC Act. No doubt ld. Counsel for the respondent has vehemently disputed the existence of rent counterfoils and also to establish that those documents are rather fabricated and false. Though, I find that in cross examination there is nothing to establish that those rent receipt, counterfoils and ledger entry are fabricated documents only because these were not signed by PW1. Rather witness has explained properly as to under which Page No. 7/11 circumstance those counterfoils were prepared. Merely because those counterfoils do not bear the signature of tenant, to my mind does not by itself be a reason to disbelieve the case of the petitioner in totality, specifically when in the pleadings of respondent tenancy has not been disputed.

Even for an argument sake if we ignore documents Ex.PW1/13 to 15 for the time being, I find that petitioner's case is still established for section 14 (1)(a) of DRC Act because first of all again if we examine the question of landlord tenant relationship, though this aspect of the case has been disputed by ld. Counsel for the respondent in the arguments when it is submitted that in fact respondent had been occupying the shop not as a tenant as the amount of pagdi was in fact in a local parlance which normally people use in that locality, was paid to petitioner only to take the shop as a owner and Rs. 50/­ was not being paid as rent but was being paid only as a maintenance charges. However, WS filed on behalf of the respondent does not indicate all these facts as submitted by the counsel for respondent. It would be appropriate at this stage to discuss the evidence lead on behalf of respondent. As stated above RW1 is Sh. JC Behl who has testified in his affidavit of examination in chief that he was known to deceased respondent as he was very close friend of him and he also know the petitioner since 1988. RW1 further says that petitioner was not in a position to sell his shops situated on the first floor and asked him to bring a potential buyer for the same. RW1 stated to have got respondent introduced to petitioner and thereafter petitioner persuaded him (RW1) to ask the respondent to take the shop in question from petitioner. RW1 further says that respondent had made the payment of Rs. 50000/­ per shop as pagdi amount of shop in question in his presence, RW1 says that respondent has been making the payment of Rs. 50 as maintenance charges as petitioner has assured that he will maintain the area in proper condition. As such Rs. 50000/­were being paid in the form of rent. RW1 says that in the locality where shop in question is situated there are various other shops which have been let out by petitioner on "pagdi" basis. Whenever any such shop/property is sold by charging 10 % of the transaction price of specific property. RW1 further testifies that petitioner has assured respondent that now respondent has become the owner of shop in question and he will neither claim back the shop nor will get it vacated from respondent.

Before we discuss this evidence and the evidence of RW2 it is appropriate to mention that all these facts as stated in the affidavit of RW1 do not find mention in the WS of respondent. Thus, create the doubt as to very veracity of these facts as stated in the affidavit of RW1. If we access the cross examination of RW1, he has admitted that he himself is the tenant under the landlordship of petitioner Kehar Singh in respect of 3 shops. RW1 further admits that there has not been any receipt regarding alleged payment of Rs. 50000/­ as pagdi for purchase of shop in question as stated in his affidavit. RW1 further admits that he has been making the payment of rent in respect of his shops and his shops and shop in question are in the same building/market.

Examining the evidence of RW1 will make it clear that first of all his evidence is beyond the pleadings, secondly, his evidence does not inspire the confidence when it is stated that in his presence Rs. 50000/­ were given by the respondent as a pagdi amount for the purchase of shop in question because RW1 has not stated as to on which date, year such transaction has taken place, evidence appears to be more vague than specific, specifically when witness admits in cross examination that there is no receipt regarding payment of Rs. 50000/­. Thus, evidence of RW1 to my mind do not help the case of the respondent in any manner.

Let us now examine the evidence of RW2 Sh. Sanjay Jain who also in his affidavit of examination in chief has testified similar facts as deposed by RW1 JC Behl. Even in the cross examination of RW2 witness has failed to testify the alleged payment of Rs. 50000/­ as a pagdi amount of the purchase of the shop. Evidence of RW2 is also beyond pleadings as stated above. Similarly, with regard to payment of Rs. 50 per month as maintenance charges as deposed by RW2, he admits in cross examination that he has no proof regarding the payment of Rs. 50 as maintenance charges. RW2 in cross examination further deposed that shop was taken on pagdi in year 1989­90. He further says that he is also not aware if any written agreement was executed at that time or not. Thus, it is clear from the evidence of RW2 that he has no first hand information of facts testified by him. In such situation, when he himself was not present nor has any first hand information of the fact, his major portion of Page No. 9/11 evidence is otherwise also beyond pleading, I find that evidence of RW2 is also failed to establish any fact to counter the claim of petitioner.

Since, there has been a great amount of emphasis given by ld. Counsel for respondent on the question of pagdi amount of Rs. 50000/­ by making an argument that such amount was given for creating a right akin to ownership right in respect of shop in question and therefore, eviction petition does not lie. Though, as already pointed out above these submissions and evidence are not part of pleadings and therefore, cannot be considered in law, still to my understanding, expression "pagdi"

as used in the evidence of RW 1 and 2 and submission of counsel for respondent, do no indicate any legal right created in respect of shop in question. In a common parlance expression pagdi is being used as an amount of premium given at the time of creation of tenancy. If according to respondent expression pagdi is being used for conveying creation of any right in the shop, it was for respondent to establish this. Respondent has failed to do so. Therefore, I do not find that respondent was occupying the shop in question in his ownership rights rather the WS filed on behalf of respondent clearly show that landlord tenant relationship was never disputed.

Now, if we examine whether notice of demand has been duly served or not, as discussed above in the evidence of PW1 notice of demand dated 22.12.2004 Ex.PW1/2 was issued on the shop and residential address of respondent. Though, there is a denial from the side of respondent for service of that notice but it would be clear from the whole evidence of PW1 it is nowhere even suggested to the witness that such notice has not been served at all. Moreover, photographs Ex.PW1/9 clearly indicate that notice was duly affixed on the shop in question which was found closed. Moreover, when admittedly notice was issued on the correct address of tenanted shop and residential address of the respondent, in the absence of any evidence to the contrary presumption in terms of Section 27 of General Clause Act can be drawn regarding due service of notice which is otherwise duly proved by postal receipts, UPC and photographs.

The fact that there has been failure of making the payment of rent is not much of dispute because though respondent has taken a plea that the amount of Rs. 50 was Page No. 10/11 to be paid as maintenance charges and not Rs. 330/­ as a rent but fact remains that when it is established that there was landlord tenant relationship between the parties, onus was on respondent to establish payment of rent. When respondent has failed to establish the defence of any ownership in the shop, as a necessary consequence respondent has also failed to establish payment of rent within 2 months despite service of demand notice. Thus, for the reasons discussed above, I find that petitioner has been successful in establishing his case and therefore, eviction petition allowed. However, I find that respondent is entitled for the benefit in terms of Section 14(2) DRC Act and therefore petition is though allowed however with the directions to respondent to make the payment or deposit the entire outstanding arrear of rent i.e. rent @ Rs. 363/­ per month for the period of 3 years proceeding to the filing of the petition as well as at the same rate of rent during the pendency of the present petition. It goes without saying that amount paid by the respondent in compliance of directions dated 25.11.2010 which were duly affirmed in the order of ld. Rent Controller Tribunal dated 06.06.2011, would stand adjusted. Subject to payment, as directed, possession of the respondent in the tenanted shop will remain protected.

Eviction petition disposed off accordingly.

Announced in open court on 24th December 2014 SH. SHAILENDER MALIK (SCJ­RC, ROHINI COURTS, DELHI) Page No. 11/11