Delhi District Court
Sh. Har Krishan Lal Choudhary(Deceased ... vs Sh. Rambir Singh on 27 November, 2014
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL CIVIL JUDGE-
CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
E. No: 168/2011
SH. Har Krishan Lal Choudhary(deceased through Lrs)
i. Smt. Balwant Kaur Choudhary (wife).
R/o 31/5, Ramesh Nagar, New Delhi.
ii. Shri Devender Kr. Choudhary (Son).
R/o 31/8, Ramesh Nagar, New Delhi.
iii. Shri Rajeev Kr. Choudhary (son),
R/o 31/5, Ramesh Nagar, New Delhi.
iv. Smt. Geeta Dasoar W/o Sh. Ashok
Kumar Dasoar,
R/o 18/11, Tilak Nagar, New Delhi-110018.
.......Petitioners.
VERSUS
Sh. Rambir Singh.
S/o Sh. Prithvi Singh,
One Shop in property
No. 31/7, Ramesh Nagar,
New Delhi. ........Respondent
Date of Institution : 07/10/2002
Date of judgment : 27.11.2014
(This case is one of the 20 oldest matters pending in this court, hence
taken on priority basis).
JUDGMENT
1. Vide this judgment the court shall dispose of petition under section 14(1)(a) r/w Section 14(2) of DRC Act filed on the basis of "second default" in E -168/11 Page No- 1 of 24 payment of rent.
2. By filing the present petition, the original petitioner Late Sh. Har Krishan Lal Chaudhary, who was an advocate by profession, sought eviction of respondent Sh. Ram Bir Singh in respect of one room measuring 12'X9' approximately along with "Miani", in property bearing municipal no.-31/7, Double Storey Quarters, Ramesh Nagar, New Delhi-110015, depicted in red colour in the site plan (hereinafter referred to as tenanted premises) under section 14(1)(a) of DRC Act.
3. The brief facts as narrated in the petition are that original petitioner is the owner and landlord in respect of tenanted premises. It is further stated that the tenanted premises was let out to the respondent for specific purpose of using the same for dairy products. It is further stated that the premises are residential in nature, but the same are being used for non- residential premises i.e. as a shop for sale and purchase of dairy products and manufacturing Ghee and also as residence.
3.1 It is further stated that the demised premises were let out by Sh. Ashok Kumar Chaudhary, the petitioner's son in the capacity of rent collector (landlord) vide written agreement dated 18.04.1986, a copy of which is same placed on record. It is further stated the rate of rent was Rs. 423.5 ps. per month w.e.f 01/10/2000 in addition to electricity, water charges, other municipal rates, cess etc. 3.2 It is further stated that earlier also respondent failed to pay the rent at the previously agreed rate of rent of Rs. 350/- per month legally due and recoverable from him w.e.f. 01/09/1990 onwards. As such Sh. Ashok Kumar Chaudhary, the petitioner's son, who was acting only as a rent collector (landlord) filed an eviction petition No. E-50/93, U/Sec. 14(1)(a) of D.R.C Act and the same was decided vide judgment dated 12/04/2002 by Sh. Sunil Kumar Aggarwal, the Ld. ARC Delhi, thereby directing the respondent to pay or deposit the rent w.e.f. 01/09/1990 onwards and with the compliance of the said order, the respondent was given the benefit of section 14 (2) DRC Act.
E -168/11 Page No- 2 of 24 3.3 It is further stated that the respondent has allegedly deposited the
arrears of rent upto 30/04/2002 in the above said petition no. E-50/93 but thereafter again failed to pay or tender the arrears of rent. As such Sh. Ashok Kumar Chaudhary, petitioner's son, vide registered AD and UPC through the notice dated 20/05/2002 informed the respondent that his father i.e. the present petitioner/Sh. Harkrishan Lal Chaudhary has become the sole and absolute owner of the entire property no. 31/05 to 08, Ramesh Nagar, New Delhi w.e.f. 13/01/1987 including the tenanted premises. In such notice Sh. Ashok Kumar Chaudhary also informed the respondent that the present petitioner/ Sh. Harkrishan Lal Chaudhary being the owner of said property is also the landlord of the tenanted premises. Further, the respondent was also informed that he should attorn and deal with Sh. H.K. L. Chaudhary as his landlord about the tenanted premises, and to pay the rent including the arrears to him. It was further informed that thereafter Sh. Ashok Kumar Chaudhary has no authortiy to receive the rent from the respondent any more. It is further submitted by petitioner that such registered AD cover of notice dated 20/05/2002 was received back as refused while the copy sent under certificate of posting was retained by the respondent as the same was not received back by Sh. Amarjeet Rai, Advocate of Sh. Ashok Kumar Chaudhary.
3.4 It is further stated that petitioner served the respondent with a legal demand notice dated 17/07/2002, through registered AD as well as UPC. It is further submitted by petitioner that such registered AD cover of legal demand notice dated 17/07/2002 was received back as refused by the respondent, while the copy sent under certificate of posting was duly retained by the respondent as the same was not received back by the petitioner. In such notice dated 17/07/2002, the petitioner called upon the respondent to pay the entire arrears of rent w.e.f. 01/05/2002. But, the respondent neither paid nor tendered nor deposited the same for three consecutive months. It is further stated that rent is payable for each English calendar month in advance by the tenth day of each calendar month against proper rent receipt as per contract. Hence the present petition filed by the original petitioner.
3.5 It is further clarified in the petition that during the pendency of E -168/11 Page No- 3 of 24
earlier eviction petition E. no. 50/93 by Sh. Ashok Kumar Chaudhary against the respondent, the original petitioner of present petition, Sh. H.K.L Chaudhary moved one application U/o 1 rule 10 (2) r/w 151 CPC for his addition as petitioner no. 2, but vide detailed order dated 04/10/1995 such prayer was not granted.
3.6 Thereafter, the original petitioner of present petition Sh. H.K.L Chaudhary called upon his son Sh. Ashok Kumar Chaudhary on 17/05/2002 not to collect any rent or deal otherwise with the respondent, therefore, Sh. Ashok Kumar Chaudhary served the above mentioned notice dated 20/05/2002 upon the respondent.
3.7 It is further clarified that original petitioner of present petition Sh. H.K.L. Chaudhary also filed a civil suit against the present respondent for a decree of mandatory injunction etc. relating to unauthorised construction by the petitioner. As such it is stated that respondent is well aware that Sh. H.K.L. Chaudhary is the owner and landlord of the tenanted premises. Despite such knowledge and legal notices already mentioned above, the respondent refused on 21/09/2002 to pay any amount of rent to the petitioner.
4. The respondent filed the Written Statement dated 24/02/2003 on 24/02/2003 itself to the present eviction petition. In such W.S., the respondent denied the allegations made by the petitioner. It is further stated that there is no relationship of landlord and tenant between the parties and it was claimed and that Sh. Ashok Kumar Chaudhary is the landlord of the tenanted premises, to whom the respondent is paying rent by money order although Sh. Ashok Kumar Chaudhary in order to create false ground has been refusing to accept the same.
4.1 It is further claimed that as there is no relationship of landlord and tenant, therefore, present petitioner cannot take benefit of earlier judgment in the eviction petition no. 50/93 dated 25/05/2002.
4.2 It is further claimed that in any case respondent was never in arrears of rent as he had already deposited the rent upto May 2002 in the court of Sh. S.K. Aggarwal in the eviction petition bearing no. E-50/93 on 13/05/2002. And thereafter respondent is depositing the rent upto date in the E -168/11 Page No- 4 of 24 court of learned ARC in the petitions filed U/s 27 DRC Act as the landlord/ Sh. Ashok Kumar chaudhary refused to accept the rent by way of money order and even personally.
4.3 Even otherwise, it is claimed that as the petitioner is also residing in the same premises in which tenanted premises in question situated, therefore, petitioner has manipulated the report on the registered AD cover and that respondent has neither received nor has any knowledge of notice dated 20/05/2002 or legal demand notice dated 17/07/2002 and same were never served upon the respondent.
4.4 It is further stated that tenanted premises consists of one shop which is open from two sides and one miani in the shop and two tin shades in front of the shop which are part and parcel tenanted premises. It is further submitted that miani was already in the tenanted premises and as such respondent did not construct the same in the year 1990. 4.5 It is further claimed that initially the rate of rent was agreed @ Rs. 300/- per month. And later in eviction petition filed by the son of the petitioner, the rate of rent was determined as Rs. 423.50 ps. per month. 4.6 It is further stated that petitioner being a professional advocate has concocted the whole false facts of present petition whereas the respondent is an illiterate person supplying milk even to the family of petitioner's son, who adjusted the same in respect of arrears of rent and other charges.
4.7 Further, the respondent for want of knowledge denied that original petitioner Sh. H.K.L. Chaudhary called upon his son Sh. Ashok Kumar Chaudhary through notice dated 17/05/2002 not to collect any rent or deal with the respondent.
5. Replication dated 23/11/2009 was filed by petitioner and in such replication, the petitioner denied the stand taken by the respondent and reiterated the contentions of the petition.
6. It is pertinent to mention that during pendency of present petition, the original petitioner Sh. Har Krishan Lal Chaudhary expired as such vide E -168/11 Page No- 5 of 24 order dated 12/05/2004 his legal heirs namely Smt. Balvant Kaur (widow), Sh. Devender Kumar Chaudhary (son), Sh. Ashok kumar Chaudhary (son), Sh. Rajeev Kumar Chaudhary (son) and Smt. Geeta Dasoar (daughter) were impleaded in his place.
But later, one of such legal heir Sh. Ashok Kumar Chaudhary also expired. As such his widow Smt. Geeta replaced in his place, vide order dated 20/09/2006.
Further, unfortunately, later such widow Smt. Geeta wife of Late Sh. Ashok Kr. Chaudhary also expired. And it is pertinent to note that she did not have any other legal heirs except other petitioners already on record at that time. As such vide order dated 03/11/2011 the petition continued in the name of remaining petitioners.
7. Evidence was adduced by petitioners as well as by respondent side. Six witnesses were examined from petitioner side. 7.1 PW-1, Sh. Shamsher Singh is the postman, who according to petitioner side delivered two crucial articles/notices Ex-PW-1/2 & PW-1/3 in question. The service of these notices is crucial in present case as such he was even cross examined at length.
7.2 PW-2, Sh. Vishram Singh is the LDC, Record Room (Civil), Tis Hazari Courts, Delhi. He is a summoned witness and he is summoned regarding certified copy of judgment dated 12/04/2002 in earlier similar petition no. E. 50/93 which was placed on record as PW-2/1 and the same was objected by learned counsel for respondent. He further deposed that he had also seen the subsequent order dated 15/05/2002 Ex. PW-2/2, and the same was also objected by learned counsel for respondent, in the same petition. This witness was not cross examined despite opportunity given. 7.3 PW-3, Uttam Singh Negi is Assistant Ahlmad in the court of Sh. Sanjeev Kumar Singh, the learned Civil Judge at that time. He is summoned relating to the documents relating to civil case between the same parties. This witness is not cross examined despite opportunity given. 7.4 PW-4, Sh. Sanjay kumar is the LDC, Record Room (Session), Tis Hazari Courts, Delhi. He is also summoned witness and he is summoned E -168/11 Page No- 6 of 24 regarding award dated 28/10/1986 and consequent decree dated 13/01/1987 regarding the same. He proved the certified copy of the same as EX. PW-4/2 and Ex. PW-4/3 and the same were objected by learned counsel for respondent. He further proved statement of Sh. J.N. Arora as Ex. PW-4/1 and the same was also objected by learned counsel for respondent. This witness was not cross examined despite opportunity given. 7.5 PW-5, Ms. Rajani Linjhara, UDC from L& D.O. proved the certified copy of deed dated 28/07/1964 as Mark- A and site plan as the same are Mark- B as well as the copy of letter dated 15/07/1993 as Mark- C. She further brought the record of the conveyance deed dated 30/11/1999 in the name of original petitioner late Sh. Har Krishan Lal Chaudhary copy of the same Marked- X. This witness was cross examined in detail by learned counsel for respondent.
7.6 PW-6 is one of the subsequently replaced petitioner, Sh. Devender Kumar Chaudhary, Son of original petitioner late Sh. Har Krishan Lal Chaudhary. He deposed on the line of the main petition about the whole case. He further proved the GPA dated 09/09/2003 in his favour by other petitioners and PW-6/A . He further relied on certified copy of judgment and order dated 12/04/2002 and 15/05/2002 of previous eviction petition no. E- 50/1993, EX. 2/1 & Ex. 2/2. He further proved the order dated 04/10/1995 on the application U/o 1 rule 10 (2) r/w 151 CPC in the previous eviction petition as Ex. PW-6/2. He further proved the certified copy of statement of parties, order, award and decree dated 13/01/1987 already EX. PW-4/1 to Ex. PW-4/4 by virtue of which original petitioner late Sh. H.K.L Chaudhary became the absolute owner of the premises in which tenanted premises is situated. He further proved the carbon copy of notice dated 17/05/2002 as Ex. PW-6/3. He further proved the copy of notice dated 20/05/2002 as Ex. PW-6/4. He further proved the original returned registered AD envelope of such notice and PW-6/5 and its registry receipt as Ex. PW-6/6 and UPC receipt as Ex. PW-6/7. He further proved the carbon copy of legal demand notice in question dated 17/07/2002 as Ex. PW-6/8 and its registry receipt as Ex. PW-6/9 and UPC receipt as Ex. PW-6/10. He further proved the original returned registered AD envelope of such notice and PW-6/11. PW-6 was E -168/11 Page No- 7 of 24 cross examined by the respondent side at length.
8. Respondent examined himself as the only witness for the respondent as RW-1. He deposed on the lines of defence taken in the reply/WS to the main petition. Further, he proved the copies of the challans deposited in court already exhibit as PW-6/R-1 and Ex. PW-6/2 as well as copy of challan Mark-A. RW-1 was cross examined by petitioner side at length.
9. Arguments were heard in detail and record perused. Further, I have gone through the case law relied by the parties. It must be noted at this stage that the Ld. Counsel for the petitioner as well as the respondent argued their case very well.
10. To prove the case Under Section 14(1)(a) r/w 14(2) of DRC Act for "2nd default", the petitioner is required to prove the following ingredients:-
(I) That there is relationship of landlord and tenant between the parties;
(II) Rate of rent;
(III) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
(IV) That a valid legal demand notice was duly served upon the respondent No. 1;
(V) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
(VI) Respondent no. 1 has already obtained the benefit U/Sec. 14(2) D.R.C. Act.
11. The ingredients are taken up for consideration one by one :-
I). Relationship As Landlord and tenant : E -168/11 Page No- 8 of 24
12. The relationship of landlord and tenant is vehemently denied by the respondent side.
13. The original petitioner late Sh. H.K.L. Chaudhary admitted that respondent was inducted by his son Late Sh. Ashok Kumar Chaudhary vide written rent agreement dated 18/04/1984, but it is further stated that his son just acted in the capacity of rent collector (landlord) only. And it is the case of the original petitioner, late Sh. H.K.L. Chaudhary that he is the actual owner and landlord of the tenanted premises.
On the other hand, the respondent defence is that there is no relationship of landlord and tenant between the parties and it is claimed by the respondent that it was (Late) Sh. Ashok Kumar Chaudhary, who was the landlord of the tenanted premises, to whom the respondent was paying rent by money order, although even such (Late) Sh. Ashok Kumar Chaudhary, in order to create false ground, was refusing to accept the same.
14. PW-4 and PW-5 as well as PW-6 deposed about the documents by virtue of which the original petitioner Late Sh. H.K.L. Chaudhary claimed ownership of the premises in which tenanted premises is situated. Same are certified copy of statement of parties, order, award and decree dated 13/01/1987, EX. PW-4/1 to Ex. PW-4/4, as well as copy of conveyance deed in favor of original petitioners, late Sh. HKL Chaudhary .
15. A bare reading of these documents makes it clear that such arbitration award was between family members of original petitioner, late Sh. HKL Chaudhary and he was a party to the same. It is further clear that by virtue of said award, which present respondent can't even challenged (being a proceeding between the family members of original petitioner), original petitioner, Late Sh. H.K.L. Chaudhary became owner of the premises in which tenanted premises is situated. Thus, it is held that Original petitioner, Late Sh. H.K.L Chaudhary is the owner of the premises in which tenanted premises is situated.
E -168/11 Page No- 9 of 24
16. Even otherwise, it is pertinent to note that in rent control legislation, the landlord can be said to be owner, if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. In M.M.Quasim Vs. Manohar Lal Sharma [ (1981) 3 SCC 36] it was observed by the Apex Court that an "owner-landlord" can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.
17. Further at this stage in view of objection taken by the respondent that original petitioner is not his landlord, it is further pertinent to discuss the meaning of "landlord" for the purpose of present petition.
In the case law of "Rajinder Prashad vs. Nathu Ram" 1995(32) DRJ 2521, it was held that:-
"The tenant has taken the plea of being tenant under the father of the petitioner and has also admitted that the property is ancestral which means that the petitioner is a co- owner of the property. I find that the decree in favour of petitioner was passed in April 1983 and has not yet been challenged by anyone including the father. As such it is binding on the father and all persons holding under him. The Rent Controller had no jurisdiction to travel behind the decree based on arbitration award relating to partition of the property giving the property in dispute to the petitioner....."
Further, in case "Jagjeet Singh vs. Mool Chand", 1983(1) RCR 638 Hon'ble Delhi High Court has held:-
"......3. The word 'Landlord' has been defined in Sec. 2(e) of the Act as follows:-
"Landlord" means a person who for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the E -168/11 Page No- 10 of 24 premises were let to a tenant".
Under this definition any person who is entitled to receive rent is the landlord. In other words, an owner who is entitled to receive rent is 'Landlord' within the meaning of Sec. 2(e) of the Act. Further any person, who for the time being is receiving rent whether on his account or on account of or on behalf of, or for the benefit of any other person is also a landlord. The definition of word 'Landlord' as given in the Act is the widest. An owner of the property is also a landlord. Any person who realises the rent on behalf of another is also 'Landlord' within the meaning of the Act.
The Tribunal after appreciating the entire evidence has concluded that Amirchand, father of Mool chand was managing the property on behalf of his son and that he was collecting rent on behalf of his son Mool Chand. Amir Chand was therefore, a landlord within the meaning of the Act. Mool Chand has been held to be the owner of the suit property. Ex. A-1 is the certificate of sale in favour of Mool chand while Ex. A-2 is the certified copy of the Lease Deed of the plot in his favour besides there is receipt showing payment of House tax by Mool Chand, respondent no. 1. There is no doubt and has been rightly held so by the Tribunal that Mool Chand, respondent no. 1 is the owner of the suit property under the definition of the word 'Landlord', Mool Chand would be landlord as he is entitled to receive rent of the property. The property has been let out on his behalf by his father. His father was also a landlord......"
It is further held in this case:-
"Under this clause the premises can be got vacated for the bonafide requirement by a person who is 'owner' as well as 'landlord'. It has already been held that Mool Chand, respondent no. 1 is the owner. If he is owner, he is landlord and entitled to institute the eviction application. Amir Chand, father of Mool Chand has appeared as a witness and has deposed that he let out the property belonging to his son. Mool Chand who also appeared as a witness has deposed that his father let out the property on his behalf. The conclusion is that the father let out the property on behalf of his son. The father is the 'landlord' U/Sec. 2(e) of the Act and he has a right to evict the tenant but he being not the owner is not entitled to evict the tenant U/Sec. 14(1)(e) of the Act.
E -168/11 Page No- 11 of 24 Mool Chand is the owner as well as the landlord, and therefore, he has a right to institute an application for eviction of the tenant U/Sec. 14(1)(e) of the Act and he would be entitled to obtain such an order if other ingredients of Sec. 14(1)(e) of the Act are fulfilled. In Smt. Savitri Devi Abdali and Ors. vs. Ram Bhaj Dutta, (1976) 12 DLT 334, this court held that the definition of 'landlord' as given in Sec. 2(e) of the Act is of the widest amplitude and would embrace within it a landlord who is also an owner of the property. In Madan Lal Narula vs. Hazara Singh, 1972 (2) Rent Law Reporter 641 this court has observed that the definition of the word 'landlord' covers a person who is entitled to receive rent. It has been further observed that the ordinary meaning of the word 'landlord' includes the owner. In that case premises were let out by a house agent and subsequently the owner filed an eviction petition and it was held that the owner was entitled to file the eviction petition. Thus if a property owned by a person, is let out by a third person, the owner is entitled to institute an eviction application as he is also a 'landlord' within the meaning of Sec. 2(e) of the Act."
18. Thus, in the light of such position of law, it is clear that owner of the premises is always the landlord. Thus, original petitioner, late Sh. H.K.L. Chaudhary is in any case (who is an owner as discussed and held above) is the landlord also of the tenanted premises, apart from Late Sh. Ashok Kumar Chaudhary who admittedly let out the premises to the respondent.
II). Rate of Rent:
19. Undisputedly, the tenancy in question was created by a written agreement dated 18/04/1986. Further as per the petitioner, the rate of rent was @ Rs. 423.5 ps per month w.e.f. 01/10/2000 excluding electricity, water and other charges/taxes. There is a vague denial to the same by the respondent side in as much as such averment is not denied in the WS. Further, the respondent gave a vague reply that in the earlier eviction petition filed against him by the original petitioner's son, the Hon'ble court fixed the rate of rent as Rs. 423.5 ps per month. It is the same rate of rent which is otherwise stated by the petitioner side. Further, the respondent did not E -168/11 Page No- 12 of 24 dispute the period for which the rent became Rs. 423.5ps per month.
As such it is held that rate of rent was Rs. 423.50 ps per month excluding other charges, w.e.f. 01/10/2000, as stated by the petitioner side also.
III). Arrears Of Rent, And V). That despite the service of the legal demand notice the respondent has neither paid nor tendered the entire arrears of legally recoverable rent:
20. The question before the court is whether the respondent was in arrears of rent for three consecutive months on the date of notice dated 17/07/2002, Ex. PW-6/8 in question.
21. It is the case of the petitioner that the respondent had defaulted in payment of rent and failed to pay rent for three consecutive months at the time of issuance and service of such legal notice dated 17/07/2002 as Ex. PW-6/8.
22. In reply to the contention raised by the petitioner, the respondent denied that he has ever defaulted in payment of rent. He further stated that he never received such legal demand notice at all.
23. It is settled law that when the petitioner alleges non-payment of rent under section 14(1)(a) of DRC Act, the onus lies upon the respondent/tenant to prove that he has paid the rent. It has been held in "Sukhanand Vs. IVth Additional District Judge, Bulendshahar & ors." [1994(2) AIRCJ 27] that the onus to show payment of rent lies on the tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all. It is also held in "Raghubir Prasad Vs. Rajendra Kumar Gurudev", 1993(2) R.C.R. (Rent) 234] that on default in payment of rent the onus to E -168/11 Page No- 13 of 24 show payment of rent lies on tenant. It is held by the Hon'ble Supreme Court of India in "Karamchand Deojee Sanghavi Vs. Tulshiram Kalu Kumawat", [1992(1) RCR 118] that in a case of eviction on arrears of rent, the onus would always be on tenant to prove that he has paid the rent.
24. Thus, the onus was upon the respondent to prove that he had made upto date payment of rent and that there was no arrears of rent in any case for three consecutive months due against him as otherwise claimed in the legal demand notice dated 17/07/2002, Ex. PW-6/8.
25. The respondent can prove the said fact either through oral or documentary evidence.
26. In present case, it is claimed by respondent side that his landlord was late Sh. Ashok Kumar Chaudhary, son of original petitioner Sh. H.K.L. Chaudhary and not such original petitioner. Therefore, it is to be decided whether tender of rent in person or by money order or by depositing in court in the name of Sh. Ashok Kumar Chaudhary in the facts and circumstances was valid tender or not.
27. It is deposed by RW-6 in para no. 6 to 8 of his evidence by way of affidavit that after the decision of the earlier eviction petition no. E-50/93, original petitioner late Sh. H.K.L. Chaudhary, served notice dated 17/05/2002 Ex. PW-6/3 on his son Sh. Ashok Kumar Chaudhary (who according to the landlord was earlier acting as landlord and rent collector of the respondent and who even according to the respondent is his landlord) calling upon him that he does not have right to collect rent from the respondent. It is further stated in such notice dated 17/05/2002 Ex. PW-6/3 that such Sh. Ashok Kumar Chaudhary informed the present respondent Sh. Rambir Singh that he should deal with original petitioner late Sh. H.K.L. Chaudhary and should pay all the arrears of rent as well as future rent to original petitioner late Sh. H.K.L. Chaudhary.
It is further deposed by PW-6 that consequently, late Sh. Ashok E -168/11 Page No- 14 of 24 Kumar Chaudhary served the notice dated 20/05/2002 Ex. PW-6/4 sent through registered post Ex. PW-6/6 as well as through UPC dated 23/05/2002 Ex. PW-6/7 on the respondent. Further, PW-6 deposed that original registered AD envelope received back relating to such notice dated 20/05/2002 is placed on record as Ex. PW-6/5 (which is even otherwise already Ex. PW-1/3). It is further deposed by PW-6, on the line of main petition that vide such notice even such Sh. Ashok Kumar Chaudhary (whom even the respondent claims to be his real landlord) called upon the respondent to attorn and deal with original petitioner late Sh. H.K.L. Chaudhary and pay the entire arrears of rent and future rent to original petitioner late Sh. H.K.L. Chaudhary.
28. On the other hand, RW-1/ respondent deposed that he did not receive any notice dated 20/05/2002 (Ex. PW-6/5). It is further deposed that in an earlier notice dated 04/08/1995, the petitioner side did not disclose about ownership of original petitioner, late Sh. H.K.L. Chaudhary, nor the son of original petitioner late Sh. H.K.L. Chaudhary informed the respondent about landlordship of original petitioner late Sh. H.K.L. Chaudhary.
29. In nutshell, the respondent is not recognizing the present original petitioner, late Sh. H.K.L. Chaudhary, as his landlord. Therefore, in the facts and circumstances of present case, the question arises whether it is necessary that tenant/ respondent must attorn the original petitioner late Sh. H.K.L. Chaudhary so that such original petitioner become legally entitled to claim rent in his own capacity and respondent become legally liable to pay rent to him. In this regard learned counsel for petitioner has also relied on the judgment of M/s Hazee K Assinar & Co. Vs. Chacko Joseph[1985(2) RCR607(Kerala)].
Further the Hon'ble Supreme Court in Atma Ram Vs. Shakuntala Rani(, AIR 2005 SC 3753) held that court has consistently taken views that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can E -168/11 Page No- 15 of 24 be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.
30. Furthermore, in Jai Kishan Versus Kamleshwar Nath Arora, 2013(2) CLJ 77 Del., wherein judgment passed by the Hon'ble Supreme Court of India in case of Sarla Goel and Ors Versus Kishan Chand, (2009) 7 SCC 658 was relied upon, the Hon'ble Delhi High Court, held that on refusal of the landlord to accept the rent tendered through money order, it was incumbent upon the tenant to have deposited the rent before the Rent Controller as prescribed under section 27 of the Delhi Rent Control Act and the tenant having failed to deposit rent under section 27 of D.R.C. Act and, committed second default, is not entitled to protection under section 14(2) of the Act.
31. From the aforesaid judgment it is clear that if the landlord refuses to accept rent, then the tenant is required to deposit rent in court under section 27 of Delhi Rent Control Act and in case he does not deposit rent in the court, then he cannot claim that he is protected from eviction under section 14(1)(a) of Delhi Rent Control Act because he has tendered rent to the landlord and that the landlord refused to accept the rent.
32. This, court is of the considered view and accordingly holds that even if the stand of the respondent (that Sh. Ashok Kr. Choudhary refused to accept the rent when respondent personally tried to pay the same to him side or sent the same through money order) is accepted, still the respondent was under a legal obligation to deposit rent in court under section 27 of Delhi Rent Control Act that too in the name of correct landlord late Sh. H.K.L. Choudhary.
33. In present case, it is already held above that original petitioner late Sh. H.K.L. Chaudhary is the owner and landlord of the tenanted premises. It is further proved on record that original petitioner late Sh. H.K.L. Chaudhary became owner on the basis of arbitration award passed in his E -168/11 Page No- 16 of 24 favor and respondent being a tenant only cannot even challenge even such award. Further in his WS the respondent denied for want of knowledge that a notice dated 17/05/2002 Ex. PW-6/3, was served on the late Sh. Ashok Kumar Chaudhary by the present original petitioner late Sh. H.K.L. Chaudhary. It is further deposed by the PW-6 that consequently notice dated 20/05/2002 Ex. PW-6/4 was sent by late Sh. Ashok Kumar Chaudhary to the respondent calling upon the respondent called upon the respondent to attorn and deal with original petitioner late Sh. H.K.L. Chaudhary and pay the entire arrears of rent and future rent to original petitioner late Sh. H.K.L. Chaudhary. And it is discussed and held hereinafter that the same is deemed to be served upon the respondent as the same was refused. Even otherwise, this court holds that there is no legal obligation on the petitioner that tenant must attorn the original petitioner late Sh. H.K.L. Chaudhary. If it is so then any change in ownership would be at the mercy of recognition by the tenant, which is not provided anywhere in the DRC Act. Although at the same time it is true that tenant/respondent must be communicated as to who is his landlord so that tenant/ respondent know whom to legally tender/pay the rent. But in this case in view of discussion already made above it is held that petitioner side discharge their duty for making the respondent aware about the fact with whom he has to deal and to whom the rent should be paid. Therefore if still the respondent continued to deal and tender or deposit the rent in the name of late Sh. Ashok Kumar Chaudhary then he did so at his own risk and legal consequences. Further, the fact that rent deposited by the respondent in the court U/s 27 DRC Act in the name of late Sh. Ashok kumar chaudhary was withdrawn by the petitioner side does not help the respondent in view of the saving section 29 (1) of DRC Act.
34. Therefore, in considered view of this court even if it is held that the respondent did send the rent by money order and thereafter deposit the rent in court u/s 27 of DRC Act, still such tender or deposit of rent by the respondent in the name of Ashok Kumar Chaudhary was not a legal tender/ deposit as the same was in the name of wrong person and not in the name of correct person i.e. present original petitioner Late Sh. H.K.L.Chaudhary.
E -168/11 Page No- 17 of 24
35. It is further pertinent to note that section 27 of DRC Act come into operation only when landlord does not accept the rent tendered by the tenant or there is a bonafide doubt as to the person to whom the rent is payable. But in present case as far as respondent is concerned, he was not in doubt as to the identity of the landlord as he clearly claimed that late Sh. Ashok Kumar Chaudhary, the son of original petitioner late Sh./ H.K.L. Chaudhary, is his landlord. Further it is also clear from evidence on record that respondent never even sought to tender rent to original petitioner Late Sh. H.K.L. Chaudhary in person or through money order. Therefore, filing of petition in the court U/s 27 DRC Act by the respondent was pre mature, to say the least. In fact it is not legally tenable as the same was filed against the wrong respondent/ landlord. In fact a warning to this effect was also given in para 3 of legal demand notice dated 17/07/2002 Ex. PW-6/8 send by original petitioner to the respondent.
36. As such it is held that there were arrears of rent for more than 03 consecutive months at the time of issuance of legal notice. And it is further held that despite the service of the legal demand notice dated 17/07/2002 Ex. PW-6/8, the respondent has neither paid nor tendered the entire arrears of legally recoverable rent for more than three consecutive months to the original petitioner late Sh. H.K.L. Chaudhary.
IV). That a valid legal demand notice was duly served upon the respondent:
37. The court is required to decide whether the legal demand notice Ex. PW-6/8 dated 17/07/2002 was served upon the respondent or not, as it is the service of this notice that gives rise to cause of action for filling of the present petition.
38. There is a presumption of service of such legal demand notice as per Section 114 of Evidence Act and Section 27 of General Clauses Act as E -168/11 Page No- 18 of 24 the Legal Notice was sent through registered post and UPC.
39. In K. Bhaskaran v. Sankaran Vaidhyan Balan, (SC) [1999 A.I.R. (SC) 3762 ] it was observed by Honorable Apex Court that 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. It was further observed that when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning relevant period.
39.1 The said judgment was relied upon by Full Bench of Honorable Apex Court in C.C. Alavi Haji v. Palapetty Muhammed, (SC)[2007(6) S.C.C. 555] and it was observed that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house"
or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
40. In present case, service of demand notice is hotly contested by the parties.
It is deposed by the PW-6 that legal demand notice dated 17/07/2002, Ex. PW-6/8 was sent through registry , receipt of which is placed on record as Ex. PW-6/9 and UPC Ex. PW-6/10. Further Ex. PW-6/8 is the carbon copy of legal demand notice in question dated 17/07/2002. He further proved the original returned registered AD envelop of such notice Ex. PW-6/11 (also Ex. PW-1/2).
He further proved the copy of notice dated 20/05/2002 as Ex. PW-6/4( vide which late Sh. Ashok Kumar Chaudhary through his counsel called upon the respondent to deal with the original petitioner as the landlord). He further proved the original returned registered AD envelop of such notice and PW-6/5 and its registry receipt as Ex. PW-6/6 and UPC receipt as Ex. PW-6/7.
E -168/11 Page No- 19 of 24 Further, as noted above, the petitioner also examined the post man Sh. Shamsher Singh as PW-1. He is a summoned public witness. In his examination in chief in court he deposed that he was on duty delivery registered article in beat no. 14, which was previously beat no.21. He further deposed that he returned the original returned registered AD envelop of notice Ex. PW-1/2 (which is also Ex. As PW -6/11)and PW- 1/3 (which is also Ex. As PW -6/5), as the addresee was not available but his son met him. And the son told that addressee would be available tomorrow or day after tomorrow from the date of such visit. It is further deposed by PW-1 that time and again visited but Rambir/addressee was not available to receive the registered article and his son refused to accept the same and further refused to give address and particulars of Rambir Singh. As such after keeping the registered articles for one week same were returned with remarks under his signature.
PW-1 was cross examined at length by the learned counsel for respondent. Such cross examination is basically on the aspect that there is a collusion between the petitioner as such post man/ PW-1 and that no actual service of both such notices in question was even ever attempted.
41. Although it is true that petitioner side is living in the same premises in which the tenanted premises is situated as such the post man/ PW- 1 is likely to be known to the petitioner. But going by the same analogy the post man/ PW-1 was also known to the respondent side as he was also carrying on business in the same area for quite long time. Further on a bare perusal of examination in chief as well as cross examination of post man/ PW-1, it is clear that he has given details of attempting such service of these two notices on the respondent in the usual course of his business. He further explained that he did not brought the record with regard to assigning of articles/ notices in question for delivery as the same has been destroyed. Further the testimony of the PW-1/ post man appears to be consistent and natural. Further, he was examined in court in October, 2004, whereas the articles/ notices in question were sought to be delivered by him about two years before, therefore it is natural that he do not remember minor issues like E -168/11 Page No- 20 of 24 name of the son of the respondent, timing of his visit as these articles were not the only articles, but only two of the thousands of articles he delivered in these two years. Further, he even denied the suggestion that he has given a false detail regarding notices Ex. PW-1/2 & PW-1/3. Further it is not the case of the respondent that address on these two notices was incorrect. Further from bare perusal of Ex. PW-1/3 & PW-1/2 it is clear that they were sent through post and even the post office seal is affixed on them. Further UPC were duly served upon the respondent as the same were sent to the correct address of tenanted premises as per evidence on record.
Further in a civil case the yardstick is of preponderance of probability. And when judged on such parameter, it can be safely concluded that PW-1 did visited the address of respondent for delivery of these two legal notices Ex. PW-6/4 dated 20/05/2002 and Ex. PW-6/8 dated 17/07/2002. As such in view of the above mentioned case law, both such notices Ex. PW-6/4 as well as legal demand notice Ex. PW-6/8 were deemed to be served on the respondent.
42. In view of the above discussion, the court is of the opinion that despite the service of the legal demand notice the respondent has defaulted in making payment of rent for the tenanted premises in question for more than three consecutive months.
43. From the above said discussion, it is clear that the petitioner has proved all the ingredients of Section 14(1)(a) of DRC Act. As such the respondent is held to be a defaulter within the meaning of Section 14(1)(a) of DRC Act.
44. At this stage, it is further pertinent to note that section 14 (2) DRC Act does not create a ground of eviction in itself. But, it is a beneficial provision in favour of a tenant/ respondent. Even in the case of "second default", which is mentioned in proviso to 14 (2) DRC Act, the landlord/petitioners has to prove all the ingredients of section 14 (1) (a) DRC Act.
E -168/11 Page No- 21 of 24 VI). Respondent No-1 already obtained Benefit under section 14(2) DRC Act:
45. RW-1/ respondent himself admitted in para no. 6 of his evidence by way of affidavit, Ex. RW-1/A that benefit U/s 14 (2) of DRC Act was provided to him in earlier eviction petition no. E. No. 50/93 by the court of Sh. S.K. Aggarwal, the then ARC, Delhi on a eviction petition filed by Sh. Ashok Kumar Chaudhary, son of the present original petitioner late Sh. H.K.L. Chaudhary. But it is claimed as the landlord was different in the earlier eviction petition no. E-50/93, therefore, the present petition cannot be termed as petition for "second default" as benefit under the present original petitioner, late Sh. H.K.L. Chaudhary was not availed by the same tenant/ respondent earlier.
On the other hand learned counsel for petitioner argued to the contrary. Further he also relied on the judgment of "Ram Khilari vs. Sh. K.S. Gupta & Ors. [1993(26) DRJ23].
46. In present case, it is not denied by the respondent that late sh. Ashok Kumar Chaudhary was nobody else but the real son of original petitioner late Sh. H.K.L Chaudhary. Further it is already discussed and held above that Sh. H.K.L. Chaudhary was the owner of the tenanted premises in question at the time of filing the present petition and further that Ashok Kumar Chaudhary was earlier acting as landlord/ rent collector on his behalf. Further in any case, in my considered view, it is the tenant who must be the same and not the landlord in the earlier petition U/s 14 (1) (a) DRC Act. Same are the facts at present. I hold so, having regard to the object of section 14 (2) DRC Act i.e to give further protection/opportunity from eviction to the tenant. As such benefit was given to some tenant/respondent in earlier petition. And it is nowhere mentioned in such section 14 (2) DRC Act or any other section of DRC Act that landlord has to be same in both the petitions. Therefore, even if the previous eviction petition was filed by Late Sh. Ashok Kumar Chaudhary, son of the present original petitioner late Sh. H.K.L Chaudhary, E -168/11 Page No- 22 of 24 still it is held that present case is a continuation of the same and as such it is a case of "second default"
CONCLUSION:-
47. Therefore, as it is held that the respondent is a defaulter within the meaning of Section 14(1)(a) of DRC Act and further that benefit U/s 14 (2) DRC Act has already been given to the respondent in earlier eviction petition no. 50/93 dated 13/05/2002, therefore, an eviction order is passed against the respondent with respect to one room measuring 12'X9' approximately along with "Miani", in property bearing municipal no.-31/7, Double Storey Quarters, Ramesh Nagar, New Delhi-110015 depicted in red colour in the site plan filed with the petition (same is marked as P-1 today for identification purpose).
37. No order as to costs. File be consigned to Record Room.
Announced in the open court on 27th November, 2014 (This judgment contains 23 pages).
(Naveen Kr. Kashyap) Commercial Civil Judge- cum-
Additional Rent Controller,
West District Courts,
E -168/11 Page No- 23 of 24
E. No. 168/2011
Har Krishan Lal Choudhary vs. Rambir Singh
27.11.2014
Present: Proxy counsel for parties.
Vide separate judgment pronounced in open court today, since the benefit U/s 14 (2) DRC Act has already been granted to the respondent in earlier eviction petition no. 50/93 dated 13/05/2002, therefore, an eviction order is passed against the respondent with respect to one room measuring 12'X9' approximately along with "Miani", in property bearing municipal no.-31/7, Double Storey Quarters, Ramesh Nagar, New Delhi-110015 depicted in red colour in the site plan filed with the petition (same is marked as P-1 today for identification purpose). No order as to costs.
File be consigned to Record Room.
(Naveen K. Kashyap)
CCJ-Cum-ARC-(W)
THC/Delhi-27.11.2014
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