Delhi District Court
Sh Prem Vohra vs Smt. Santosh Singhal Wd/O Sh. R.P ... on 9 June, 2011
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IN THE COURT OF SH. ASHUTOSH KUMAR, SENIOR CIVIL JUDGE CUM
RENT CONTROLLER (NORTH WEST): DELHI
Eviction Petition no. 01/09/08
In re:
Sh Prem Vohra
S/o Late Sh Mathura Dass
R/o House no. 35-B, Old Gupta Colony, Delhi-09.
........Petitioner
Versus
1.Smt. Santosh Singhal Wd/o Sh. R.P Singhal
2.Sh Satish Singhal S/o Sh R.P Singhal
3.Kumari Sushma (@ Munni) D/o Sh R.P Singhal
4.Master Surendra @ Pappu S/o Late R.P Singhal
5.Master Chhotu S/o Late Sh R.P Singhal
All R/o 35-B, Old Gupta Colony, Delhi-09.
........Respondents
PETITION UNDER SECTION 14(1)(a), Read With Proviso to Section 14(2) of D.R.C Act.
JUDGMENT
1 The petitioner has filed the present petition for eviction of the respondents U/s 14(1)(a), read with proviso to Section 14(2) of Delhi Rent Controller Act (herein after called as D.R.C Act). It is the case of the petitioner that Sh R.P Singhal was tenant in respect of the tenanted room measuring 8'x9'( as shown in red colour in the site plan attached with the petition) in premises bearing no. 35-B, Old Gupta Colony, Delhi-09 for .........Continue -2- residential purpose. After the death of Sh R.P Singhal the respondents (LRs of Sh. R.P. Singhal) are illegally and unlawfully the using same for non residential purposes and have converted the same into a shop. It is claimed that on the date of filing of the petition the rate of rent of said premises is Rs. 212.96 paise only and the last paid rent was Rs. 193.60 paise excluding electricity charges which was increased by 10% after service of legal notice dt. 29.11.05 as per Section 6-A of DRC Act and the respondents are also liable to pay interest @ Rs. 15 % p.a on the amount of rent due from respondents w.e.f 01.2.2004. It is further the case of the petitioner is that due to non payment of rent earlier, the petition of the petitioner U/s 14(1)(a) of DRC Act against the respondents was allowed by Sh P.C Ranga, the then Ld. Rent Controller Delhi vide his order dt. 05.12.96 in eviction petition no. 270/94. It is also the case of the petitioner that the rent was held to be Rs. 160/- p.m by the aforesaid order of the said Court and same was increased by 10% w.e.f 01.03.97 by serving the respondents with a legal notice and thereafter, the rent was again increased w.e.f 01.1.04 @ Rs. 193.60 paise excluding electricity charges. It is further the claim of the petitioner that w.e.f 01.1.06 the respondents were intimated to pay the rent @ Rs. 212.96 paise excluding electricity charges. As per the claim of the petitioner the respondents are in arrears of rent w.e.f 01.02.04 to 31.12.05 @ Rs. 193.60 paise per month and w.e.f 01.01.06 till filing of the petition @ Rs. 212.96 paise per month. The respondents were served with legal notice of .........Continue -3- demand dt. 29.11.05 claiming arrears of rent but have not paid the same and are in arrears of rent of more than three consecutive months. The petitioner has prayed that since the benefit U/s 14(2) of DRC Act has already been given to the respondents once as mentioned above therefore, the respondents are liable to be evicted under section 14(1)(a), read with proviso to Section 14(2) of D.R.C Act.
2 The respondents filed their joint written statement wherein they denied the allegations mentioned in the petition and also denied that they are misusing the said tenanted premises or that the same was let out to Sh R.P Singhal for residential purpose only. The respondents have claimed that they being the Lrs of Sh R.P Singhal are the tenants in the said shop, which is used for commercial purpose since the time of Sh. R.P. Singhal. They have denied that the rent has not been paid since 01.02.2004. Their stand is that the rent has been paid up to 30.12.05 and have claimed that the said fact has been admitted by the petitioner in para -19 of his petition. However, the respondents have admitted that the last paid rent was Rs. 193.60 paise. They have also stated that there is no allegation in the petition that the alleged rent due was not paid or tendered within two months of the aforesaid alleged notice of demand and hence the petition is liable to be dismissed. They have lastly claimed that no legal notice of demand dt. 29.11.05 was served upon them. The service of legal notice was a statutory requirement and hence the petition is liable to be dismissed.
.........Continue -4- 3 The petitioner has examined himself as PW1 and has filed his affidavit of evidence and has deposed on the lines of his petition.
4 The respondent no.1 Ms Santosh Singhal examined herself as RW1 and tendered her evidence by way of affidavit. The respondent no. 2 Sh Satish Singhal examined himself as RW2 and tendered his evidence by way of affidavit. The respondent no. 4 Sh. Surender @ Babloo examined himself as RW3 and tendered his evidence by way of affidavit. Respondent no. 5 Sh Ashu @ Master Chhotu examined himself as RW4 and tendered his evidence by way of affidavit.
5 I have heard Sh Arun Kumar Ld counsel for petitioner and Sh A.P Aggarwal Ld counsel for respondents and have perused the record carefully including the written submissions filed and the relevant authorities cited.
6 The necessary ingredients for grant of relief U/s 14(1)(a) of DRC Act, 1958 are as under:-
(a) There exist relationship of landlord and tenant.
(b)Rate of rent.
(c)Existence of arrears of rent legally recoverable on the date of service of demand notice.
(d)Service of notice of demand upon the respondent and that the tenant failed to .........Continue -5- pay or tender the entire legally recoverable arrears of the rent within 2 months from the date of service of demand notice.
There exist relationship of landlord and tenant:- The petitioner has filed the present petition claiming himself to be the landlord of the suit room which was given on tenancy to Sh R.P Singhal. Admittedly Sh R.P Singhal expired and the respondents are Lrs of the said Sh R.P Singhal and are in possession of the said suit shop. From the case of the petitioner it is clear that the rent with respect to the said premises has been paid by respondents up to 31.1.04. The respondents have also not denied the relationship of landlord and tenant. Hence, it is held that the relationship of landlord and tenant exists between the parties with respect to the suit shop.
Rate of rent:-
The parties have not disputed that rate of rent was held to be Rs. 160/- p.m. in eviction petition no. 270/94 vide order dt. 05.12.96 of Sh P.C Ranga the then Ld. Rent Controller Delhi whereby benefit of U/s 14(2) of DRC Act was given to the respondents. The claim of the petitioner is that rent @ Rs. 193.60 paise w.e.f 01.2.04 to 31.12.05 and at the rate of Rs. 212.96 paise (after service of legal notice dt. 29.11.05 after 10% increase as per section 6A of D.R.C. Act w.e.f 01.1.06 till filing of the petition), was not paid by the respondents. The respondents have admitted in their WS that last paid rent was Rs. 193.60 paise. However, they have claimed that they have paid the said rent up to .........Continue -6- 30.12.05. Ld counsel for respondents also stated that petitioner has himself admitted in para 19 of his petition that the said rent has been paid up to 30.12.05. However, the petition has to be read in totality and in para 18(a) the petitioner has clearly mentioned that said rent is due w.e.f 01.02.04. It is admitted case of the parties the last paid rent was Rs. 193.60/- p.m. The petitioner has claimed that he had served a legal notice dated 29.11.05 Ex. PW-1/2 upon the respondents vide registered A.D. receipt Ex. PW-1/5 and U.P.C. receipt Ex. PW-1/4. Therefore, I hold that the rate of rent for the period 01.02.04 to 31.12.05 was @ Rs. 193.60 p.m. Existence of arrears of rent legally recoverable on the date of service of demand notice:-
In the testimony of PW1, the claim of the petitioner is that the rent @ Rs. 193.60 paise was not paid by the respondents w.e.f 01.02.04. Except for their bald testimony that the said rent has been paid up to 31.12.05, the respondents have not brought any such material to support their claim. The RW3 and RW4 have clearly admitted in their cross examination that the respondents do not have any receipt or challan for the payment of rent for the period 01.02.04 to 31.1.08. Admittedly, the relations between the parties were not cordial and once the benefit U/s 14(2) was granted to the respondents on 05.12.96, thereafter, it was quite natural that the respondents should have paid the rent on receiving the receipt or through cheque or Pay Order, which is not the case .........Continue -7- herein. Admittedly, the respondents have also not deposited the said rent with the Rent Controller. Further, RW2 has admitted that rent for the period 01.02.01 to 31.1.04 amounting to Rs. 6992/- was paid to the petitioner pursuant to legal notice dt. 24.12.03 and vide reply dt. 09.01.04 Ex RW2/P1. The petitioner has given all the relevant suggestions to all the respondent witnesses that the said rent was not paid. The present petition was filed by the petitioner on 22.1.08. The respondents have filed on record the receipt Ex RW1/P1 vide which the rent for the period of 01.01.10 to 30.6.10 only was deposited . In the absence of any other documentary evidence on behalf of the respondents for payment of rent for aforesaid periods, I hold that the respondents are in legally recoverable arrears of rent w.e.f 01.02.04 to 29.11.05 (Date of sending of legal notice of demand) @ Rs. 193.60 p.m. Service of notice of demand upon the respondent and that the tenant failed to pay or tender the entire legally recoverable arrears of the rent within 2 months from the date of service of demand notice.
The petitioner has claimed that the legal notice of demand dt. 29.11.05 Ex PW1/2 was duly served upon the respondents. As per the claim of the petitioner, the said notices were deemed to be served through Registered AD process Ex PW1/5 which was refused by the respondent and the same was also served through UPC receipt Ex PW1/4 as the same did not return back. However, the respondents have denied the service of said .........Continue -8- notice of demand. Ld counsel for respondents has stated that the registered AD envelope Ex PW1/5 mentions the name of all the five respondents whereas one registered AD can be sent in the name of only one person, and hence the said legal notice has not been duly proved to be served. He has further submitted that the UPC receipt Ex PW1/4 mentioning the names of five respondents contains postal stamp of Rs. 3/- only whereas once the number of persons increases more than three in the case of UPC the postal stamp of Rs. 6/- is to be affixed. He has also relied upon the judgment in the case of State of Maharashtra Vs Rashid Babu Bhai Mulani AIR 2006 SC 825 to argue that service by UPC only cannot be relied upon. He has also relied upon the case of Fakir Mohd.(Dead) by Lrs Vs. Sita Ram AIR 2002 SC to argue that the legal notice has not been duly proved. However, the judgments cited by Ld. Counsel for respondents are not applicable in the facts of the present case as they are distinguishable on facts. Further, no where in the aforesaid case cited by Ld. Counsel for respondents, Hon'ble Supreme Court has laid down the law that the service by UPC is not to be inferred in every case. Once the legal notice was sent through UPC and the same was not received and the petitioner has categorically deposed that the same was served through UPC and further the respondents have not produced any material to rebut the presumption U/s 114 (f) of The Indian Evidence Act, therefore, it is presumed that the said legal notice was served by UPC. Merely because the postal stamps of Rs. 06 value was not affixed on UPC .........Continue -9- receipt Ex. PW-1/4, it cannot be presumed that the said legal notice was not sent through UPC. Further, the respondents have not denied that their addresses mentioned in the legal notice sent through registered A.D. and UPC, are not correct. Further it is settled law that the report of 'refusal' of registered A.D. process, amounts to deemed service, which is the case herein. Also it is well settled that the service of legal notice of one of the tenants is of service of legal notice to all the co-tenants. I find no force in the contentions of the Ld. Counsel for the respondents that mentioning of name of all the respondents on one registered A.D. envelope would make the same not worthy of trust. Lastly it was open to the respondents to examine the concerned Clerk from postal department to prove that the said legal notice was not actually sent to their on that particular day, which is not the case herein. The petitioner/landlord had done everything which was in his domain and control to serve the legal notice of demand and he could not have done anything beyond that. In this case legal notice was sent by both the modes i.e. through registered A.D. and UPC. Hon'ble Justice V.B. Deshpande of Hon'ble Delhi High Court held that notice sent under the certificate of posting is presumed to have been served and tenant's denial has no value unless he proves some extraordinary happening or event which prevented the following of the usual course of business (in the case of Om Parkash Bahal v. A.K. Shroff, 1972 RCR 960 = 1973 RCJ 149 = ILR 1972(2) Del. 943 = AIR 1973 Del. 39). A Division Bench of Hon'ble Delhi .........Continue -10- High Court held that if it is proved that notice was sent by post then the Court may presume its delivery to the addressee under illustrations (e) and (f) to Section 114 of Evidence Act. This presumption is rebuttable. The addressee may show that the document was never delivered to him and that he never received the same. Section 27 of General Clauses Act however lays down that where statute requires sending of a document by post and if such a document is sent by registered post then it would be deemed that it was delivered in due course (in the case of H.L. Pathak v. Smt. Subhag Wanti, Ramesh Chander v. DCM Co. Ltd., Giani Ram Singh v. Ram Nath, Ram Singh v.
Balu, 1972 Raj. LR (Abridged) 153, S.N. Andley & T.V.R. Tatachari, JJ., D.O.D. 31-10-1972). Defects in A.D. receipt are not much material (in the case of Sudhir Kumar Gupta v. Varshawati and others, 1995 Raj. LR 94, Arun Kumar, J., D.O.D. 03-01-1995). Therefore in a case covered by Section 27 of the General Clauses Act the presumption is given the status of proof. Division Bench of Hon'ble Calcutta High Court also took the same view (in the case of Santosh Kumar Gupta v. Smt. Chinmoyee Sen, AIR 1996 Calcutta 615). Hon'ble Justice C.N. Laik speaking for the Bench observed that notice need not necessarily be posted by registered post it can be posted under certificate of posting as well. If the notice is sent by post and is correctly addressed then the presumption arises that there was proper service of the notice. The presumption of service in due course is attached not only to the letters sent by registered .........Continue -11- post but also sent under the certificate of posting. Hon'ble Patna High Court held that the illustration under Section 114 of the Evidence Act could not confined only to letters sent under Registered Post, those sent by ordinary post too ought to be presumed to be delivered to the addressee (in the case of Dineshwar Prasad Singh v. Smt. Manorama Devi, AIR 1978 Patna 256 = 1978 (2) RCR 503). Hon'ble Justice Sultan Singh of Hon'ble Delhi High Court held that if the notice is sent by registered post and under certificate of posting then the presumption arises that the common course of business must have been followed and the notice must have been delivered unless such presumption is rebutted. If notice is not received back (in the case of Madan Lal Sethi v. Amar Singh Bhalla, 1980 (2) RCJ 543 (Delhi) = 1980 Raj. LR 693 = 18 (1980 DLT 427, Usha Mehra, J.; Prime Industries & others v. Rafeeq Ahmad, 1997(1) RCR (Rent) 661 (Delhi) : 67 (1997) DLT 121; Vinod Nagpal v. Bakshi S. Kuljas Rai, 1989 (2) RCR 154 = 1989 (2) RCR 298, (Delhi), Santosh Duggal, J) or received back with recipient's signature (in the case of M/s Green View Radio Service v. Laxmibai Ramji, AIR 1990 SC 2156 = 1990 (4) SCC 497 = JT 1990 (4) SC 54 = 1990(2) RCJ 459 = 1991 (1) RCR 54 = 1990 (2) Scale 533, P.B. Sawant & N.M. Kasiwal, JJ., D.O.D. 11-09-1990) then the presumption of service arises. This law is followed till date by the various Hon'ble High Courts. Even if the notice is sent under Certificate of posting only the presumption that the notice was served on the addressee would arise (in the case of Prem Chander Jain v.
.........Continue -12- Jagat Parkash Gupta, 1988 (2) RLR 401 = 1988 (2) RCR 647, Sunanda Bhandare, J., D.O.D. 04-05-1998). From the totality of the facts and circumstances I hold that the legal notice of demand dated 29.11.05 Ex. PW-1/2 was duly served upon the respondents. Also, it is settled law that in the case of second default the landlord is not required to serve a legal notice of demand for arrears of rent. Also the petitioner has relied upon the judgment by Hon'ble Mr. Justice Shiv Narayan Dhingra in CM(M) no. 133/1999 titled as "Sh Raghbir Singh Vs. Smt Sheela Wanti & Ors wherein it was held that the landlord was not supposed to serve a notice on the tenant after every few months demanding arrears of rent. Once the tenant has suffered an order, Section 14(1)(a) but the eviction order is not passed and the tenant is given benefit of Section 14(2), it become obligatory upon the tenant to continue to pay the rent every month and tenant should not be allowed the liberty to accumulate the rent and pay it only after service of a notice by the landlord calling upon the tenant to pay arrears of rent. The respondent have not produced any material on record to prove that they have paid the arrears of rent w.e.f 01.02.2004. The legally recoverable rent was not paid by the respondents for the last three consecutive months from the date of service of legal notice dt. 29.11.05. The filing of the present petition and receipt thereof was also in itself a notice to the respondents for arrears of rent. Therefore, I hold that the respondents have failed to make the payment of arrears of legally recoverable rent for three consecutive months after they .........Continue -13- became due even within 02 months of the service of legal notice of demand or even within two months of the filing of the petition and service of notice thereof. 7 The petitioner has proved all the necessary ingredients for grant of relief under section 14(1)(a) of DRC Act, 1958. Accordingly, petition U/s 14(1)(a) of DRC Act, 1958 is allowed. It is the admitted case of the respondents that they have already availed the benefit of protection U/s 14(2) of DRC Act, 1958 regarding the suit premises, therefore, on the second default the respondents are not entitled for grant of benefit of section 14(2) of the DRC Act, 1958. Accordingly, eviction order is passed. The respondents are directed to vacate and hand over the possession of the tenanted premises i.e shop bearing no. 35-B, Old Gupta Colony, Delhi-09 as shown red in the site plan within one month from the date of passing the judgment. The petitioner is entitled to the cost of the petition. The file be consigned to record room after completion of necessary formalities.
Announced in open Court. (Ashutosh Kumar)
Dt. 09.06.2011 SCJ-cum-RC:NW:Rohini Court
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Eviction Petition no. 01/09/08
09.06.2011
Present:- None.
Vide separate judgment of even date, the petition U/s 14(1)(a), Read With Proviso to Section 14(2) of D.R.C Act of the petitioner has been allowed with costs and the eviction order has been passed against the respondents. File be consigned to Record Room.
(Ashutosh Kumar) SCJ-cum-RC:NW:Rohini Court .........Continue