Delhi District Court
Sh. Satinder Pal Kharbanda vs Smt. Kunti Devi on 30 August, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25577/16
1. Sh. Satinder Pal Kharbanda,
S/o Late Sh. Deshraj Kharbanda,
WZ-250A, Street No.10,
Hastsal Road, Uttam Nagar,
New Delhi-110059.
2. Smt. Santosh Kharbanda
W/o Sh. Satinder Pal Kharbanda
WZ-250A, Street No.10,
Hastsal Road, Uttam Nagar,
New Delhi-110059. ....Petitioners
VERSUS
1. Smt. Kunti Devi
W/o Late Sh. Ambika Singh,
H.No.E-15, (New No.D-15),
Shiv Colony, Vikas Nagar,
Ranholla Road, Uttam Nagar,
New Delhi-110059.
2. Sh. Akash Kumar,
S/o Late Sh. Ambika Singh,
H.No.E-15, (New No.D-15),
Shiv Colony, Vikas Nagar,
Ranholla Road, Uttam Nagar,
New Delhi-110059.
3. Sh. Vikas Kumar,
S/o Late Sh. Ambika Singh,
H.No.E-15, (New No.D-15),
Shiv Colony, Vikas Nagar,
Ranholla Road, Uttam Nagar,
New Delhi-110059. .... Respondents
Date of Filing : 10.10.2013
Date of Judgment : 30.08.2019
ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 1 /13
JUDGMENT
1. Brief facts of the present case are that on 10.10.2013, the petitioners filed a petition Under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') praying to this court to pass an order for eviction in favour of the petitioners and against the respondents to hand over the peaceful vacant possession of the tenanted premises situated at H. No. E-15 (New No. D-15), Shiv Colony, Vikas Nagar, Ranholla Road, Uttam Nagar, New Delhi, more specifically shown in red colour in the site plan attached.
2. The case of the petitioners is that the petitioners are husband and wife and are joint and exclusive owners of H.No. E-15(New No. D-15), Shiv Colony, Vikash Nagar, Ranholla Road, Uttam Nagar, New Delhi vide documents such as Agreement to sell, GPA, Will, Receipt etc. That in the year 1995, the deceased Sh. Ambika Singh, who was husband of respondent no.1 and father of respondent no. 2 and 3 was allowed to use one room, kitchen and bathroom in the suit property bearing no. H. No. E-15 (New No. D-15), Shiv Colony, Vikash Nagar, Ranholla Road, Uttam Nagar, New Delhi purely on license basis without paying any licence fee. After the death of Sh. Ambika Singh in October 2006, the premises/license to use the suit premises was automatically cancelled and the respondents were in unauthorised possession of the said property. That the petitioners had filed suit bearing no. 154/09, titled as Sh. Satinder Pal Kharbanda Vs. Smt. Kunti Devi, for recovery of possession, rent and damages. That the respondents had filed written statement in the above noted suit ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 2 /13 and stated that in the year 1995, the suit premises consisting of one room, kitchen, bathroom at the monthly rent of Rs. 200/- excluding electricity and water charges had been taken on rent by Late Sh. Ambika Singh from the petitioners. That respondents also stated and admitted that they had paid rent of the suit property upto the month of December, 2007 @ Rs. 200/- per month. That the respondents in tenanted premises are still continuing the default in payment of rent to the petitioners since January, 2008 and miserably failed to pay the same to the petitioners even after several requests and despite service of the legal notice dated 10.08.2013 for termination of their tenancy in lieu of the non-payment of rent since January, 2008. That the respondents neither replied to the said legal notice nor complied with the same.
Lastly, petitioners pray to the court that an eviction order may be passed against the respondents.
3. On the other hand, Written Statement was filed by the respondents in response to the petition filed by the petitioners U/S 14 (1)(a) of D.R.C Act, praying to the court to dismiss the present petition with costs.
In their written statement, the respondents have inter-alia stated that the suit of the petitioners is liable to the rejected U/O 7 R 11 CPC. That the site plan is not as per the site of the suit property. That the tenanted premises consisted of one room (having two portions with common door separated by a common wall, constructed to support the angle irons of roof of both the portions/sides), kitchen, bathroom, gallery and open yard, at the monthly rent of Rs.200/-, excluding electricity and water charges was taken on rent by late Sh. Ambika Singh (the ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 3 /13 husband of respondent no.1 and father of respondents of 2 and
3) from the petitioners regularly throughout his lifetime and thereafter the said rent was being paid by the respondents but the petitioners were not issuing any rent receipt despite the demand by Late Sh. Ambika Singh and the respondents. That the petitioners deliberately refused to accept the rent w.e.f. 01.01.2008 for the reason best known to them and filed a civil suit for recovery of possession, rent, damages and permanent injunction. That after the dismissal of their above said suit, the petitioners in the month of December, 2012 approached the respondents and asked them to pay the arrears of rent w.e.f. 01.01.2008 to 31.12.2012 and assured that they will not get vacated the rented premises from the respondents and accordingly believing them, the respondents paid the arrears of rent @ Rs. 200/- p.m. excluding electricity and water charges (Rs.200 x 60=12,000) to the petitioners. That at the same time, the respondents requested the petitioners to permit them to install a door in the common wall of the room which the petitioners permitted and accordingly the respondents installed a door in the common wall with the prior permission of the petitioners. Thereafter, further rent was paid regularly at the same rate by the respondents to the petitioners upto 30.09.2013 but again, in the month of October, 2013, the petitioners deliberately refused to accept the rent of the suit premises when tendered by the respondents. The respondents were regularly requesting to the petitioners to issue the rent receipts but they did not issue any rent receipt. The respondents undertake to make the payment of rent along with rent arrears w.e.f 01.10.2013 in view to protect their tenancy in the tenanted premises. That repeatedly the petitioners in this ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 4 /13 petition have mentioned the fact that the late Sh. Ambika Singh (the husband of respondent no.1 and father of respondents no.1 and 2) was a licensee of the petitioners in the suit premises and not a tenant. Therefore, if the relationship between the parties is not that of the landlord and tenant, this Court has no jurisdiction to entertain and try the petition in hand. That tenanted premises was taken on rent @ Rs. 200/- p.m. excluding electricity and water charges by Late sh. Ambika Singh and the dispute of the licensee and tenancy between the parties in regard with the same premises was decided in favour of the respondents herein and against the petitioners. That the site plan is not correct as per the site. Late Sh. Ambika Singh was never a licence but he was a tenant in the suit premises since 1994 and now the respondents being his legal heirs are tenant in the suit premises. That the respondents have not received any legal notice dated 10.08.2013 for termination of their tenancy. That the respondents have paid all the rent @ Rs.200/- p.m. excluding electricity and water charges upto 30.09.2013 and thereafter the petitioners have refused to accept the rent when tendered by the respondents in the month of October, 2013 for the reason best known to them. That despite several requests made by the respondents the petitioner failed to issue any rent receipt.
Lastly, it is prayed that the present petition may be dismissed with costs.
4. Record reveals that replication has also been filed by the petitioners to the written statement filed by the respondents. The petitioners have denied all the allegations levelled by the respondents and reiterated and reasserted all the facts as ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 5 /13 stated in the petition.
5. Thereafter, the matter was fixed for petitioners' evidence. The petitioners examined Sh. Satinder Pal Kharbanda as PW-1 being only witness. PW-1 tendered his evidence, relied upon various documents and cross examined at length. Thereafter, petitioners' evidence was closed.
On the other hand, respondents examined Sh. Akash Kumar as RW-1 being only witness. RW-1 tendered his evidence, relied upon various documents and cross examined at length. Thereafter, respondents' evidence was closed.
6. I have heard the arguments at length advanced by Ld. Counsels for both the parties and also gone through the entire record and case law relied upon. I have also carefully gone through the testimonies of the witnesses, documents and material on record.
Law on 14(1) (a):-
7. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"(a) that the tenant has neither paid nor ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 6 /13 tendered the whole arrears of the rent legally recoverable from him within two months of the day 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 (4 of 1882)."
As such, the following are the ingredients of section 14(1) proviso (a) :-
(i) There should be a relationship of landlord and tenant between the parties.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the tenant given by the landlord.
8. Let us discuss the ingredients of Sec. 14(1)(a) D.R.C. Act.
(i). RELATIONSHIP OF LANDLORD AND TENANT:-
9. Perusal of record shows that the petitioners have claimed to be joint and exclusive owners of the tenanted premises on the basis of certain documents such as Agreement ot Sell, GPA, Receipt etc. On the contrary, the respondents have not disputed the landlordship of the petitioners.
As such, there exists relationship of landlord and tenant between the parties.
ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 7 /13(ii). There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the tenant given by the landlord:-
Service of Legal Demand Notice:-
10. Perusal of record shows that the petitioners have claimed served legal demand notice dated 10.08.2013 Ex. PW-1/6.
On the other hand, the respondents have claimed that no such notice was served upon them.
I have scrutinized entire record which shows that legal demand notice dated 10.08.2013 Ex. PW-1/6 has been placed on record demanding the arrears of rent. The petitioners have also placed on record postal receipts Ex. PW-1/7 to prove the service of legal demand notice dated 10.08.2013.
Perusal of record shows that the respondents have merely made the averment in respect of non-service of such legal demand notice. On the other hand, petitioners have placed on record documents to prove the service of legal demand notice.
In the case titled as K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble Supreme court observed :-
"The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
Section 114 of Indian Evidence Act, 1972 lays down as under:-
114: Court may presume existence of certain ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 8 /13 facts. That the court may presume existence of any fact which it thinks likely to have happened, regard being head to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations:
The court may presume-
(a)...
(b)...
(c)...
(d)...
(e)...
(f) That the common course of business has been followed in particular cases; -
(g)....
(h).....
(I).....
but the court shall also have regard to such facts as the following, in considering whether such maxim do or do not apply to the particular case before it:-"
As to illustration (a).....
As to illustration (b).....
As to illustration (c).....
As to illustration (d).....
As to illustration (e).....
As to illustration (f): The question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g).....
As to illustration (h).....
As to illustration (i)........"
11. It is well settled law that this presumption is a rebuttable presumption. If there is any such circumstance weakening such presumption, it cannot be ignored by the court.
12. I have carefully and minutely gone through the record which shows that the respondents have merely made the bald averments in respect of non receiving of such legal demand ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 9 /13 notice given by the petitioners.
As such, the respondents have merely denied the service of such notice but have done nothing to prove it. It was the duty of the respondents to prove that they were not served by such notice, but they failed to rebut the evidence and documents of petitioners in respect of legal demand notice.
As such, in my considered view, the legal demand notice is proved to have been served upon the respondents.
(iii). NON PAYMENT OF RENT:
13. Perusal of record shows that the petitioners have claimed that the respondents have not paid or tendered the rent w.e.f. January, 2008 @ Rs. 200/- per month.
On the other hand, the respondents have not disputed the rate of rent but have claimed that they have paid the arrears of rent w.e.f. 01.01.2008 to 31.12.2012 @ Rs. 200/- per month to the petitioners in the month of December, 2012 and they further paid the rent to the petitioners upto 30.09.2013 in October 2013. But the claim of the respondents is that petitioners did not issue the rent receipts deliberately despite several requests. It is the claim of the respondents that they are ready to make the payment of arrears of rent w.e.f. 01.10.2013 onwards.
As such perusal of record clearly shows that the respondents themselves have admitted to have not paid the rent w.e.f. 01.10.2013. Moreover, the respondents have also admitted that they are not having any rent receipts to prove the payment of rent to the petitioners in the month of December 2012 and October 2013. The defence of the respondents is that rent receipts were not issued by the petitioners despite several ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 10 /13 requests.
14. In my considered view, this defence of the respondents is having no substance at all as Sec. 26 of the D.R.C. Act is always there on the statute for redressal of such kind of grievance faced by the tenants as Sec. 26(2) clearly lays down that every tenant who makes payment of rent to his landlord shall be entitled to obtain forthwith from the landlord a written receipt for the amount paid. Moreover, Sec. 26 (3) provides that in case landlord refuses a rent receipt to the tenant, an application may be made to the Controller within two months from the date of such payment. But the perusal of the record shows that no record has been produced by the respondents to prove that they approached the Rent Controller for the purposes of redressal of such grievance.
As such, the respondents cannot take advantage of their own default. Moreover, no plausible reason has been given by the respondents for not approaching the Rent Controller under section 26(3) of the DR.C. Act.
As such, perusal of record manifestly shows that the respondents have not complied with the legal demand notice dated 10.08.2013. It is also well settled that it is a duty of the tenants to prove that they have paid the rent upto date and nothing is outstanding against him. But in the present case the respondents have not been able to prove this fact.
In view of discussion earlier, all the ingredients in respect of Sec. 14(1)(a) of D.R.C. Act are satisfied.
CONCLUSION:
15. As such, the petitioner has been able to prove all the ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 11 /13 ingredients of 14(1)(a) of DRC Act in respect the tenanted premises situated at H. No. E-15 (New No. D-15), Shiv Colony, Vikas Nagar, Ranholla Road, Uttam Nagar, New Delhi, more specifically shown in red colour in the site plan attached Ex. PW-1/5.
16. Perusal of record shows that an order U/Sec. 15(1) D.R.C. Act was passed by my Ld. Predecessor directing the respondents to pay or tender the rent w.e.f. October, 2013 @ Rs. 200/- per month within one month and further directed to pay the future rent by 15th of each succeeding English Calendar month.
Hence, in view of discussion earlier, an modified order U/Sec. 15(1) of the D.R.C. Act is passed directing the respondents to pay or tender the rent to the petitioners or deposit in the court at the rate of Rs. 200/- per month w.e.f. 10.10.2010 (Legally recoverable rent) till date along with simple interest @ 15% per annum within one month from the date of this order and the respondents are also directed to pay the future rent at the same rate month by month on or before each succeeding English calendar month.
17. Nazir is directed to file his report on 03.10.2019 regarding compliance by the respondents of orders passed U/Sec. 15(1) of the D.R.C. Act dated 20.08.2014 passed by my Ld. Predecessor as well as the modified order passed today by this court.
18. Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 12 /1319. This file be consigned to Record Room after due compliance.
Announced in the open Court Digitally signed
on 30th August, 2019. AJAY by AJAY NAGAR
Date:
(This judgment contains 13 pages) NAGAR 2019.08.30
17:09:48 +0530
(Ajay Nagar)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25577/16 Satinder Pal Kharbanda & Ors. Vs Kunti Devi & Ors. Page 13 /13