Delhi District Court
Masjid Bandariya Wali Welfare ... vs Abdul Hameed Khan (Now Deceased) on 29 November, 2021
In the Court of CCJ cum ARC (Central District)
Tis Hazari Courts, Delhi
Presided by: Sh. Santosh Kumar Singh
Case No. E- 80626/2016
CNR No. DLCT03-000267-2004
In the matter of:-
Masjid Bandariya Wali Welfare Association
Regd. S-22952 at 11386,
Ram Nagar Market, Qutab Road,
New Delhi-110055.
Through its General Secretary,
Shri Nawabuddin. ............Petitioner
Versus
1. Abdul Hameed Khan (Now deceased)
S/o Shri Aziz Khan
Shop No. 11386/3,
Ram Nagar Market, Qutab Road,
New Delhi-110055.
Through his legal heirs :-
(a) Abdul Rashid -son-
(b) Shamim Ahmad -son-
(c) Tasleem Ahmad -son-
(d) Shahana -daughter-
(e) Farjana -daughter-
(f) Sameena -daughter-
All Reside at :-
F-19/7, Nafees Road,
Batla House, Okhla,
New Delhi-110025.
(g) Rehana -daughter-
R/o 14/2, Vijay Park, Gali No. 7,
Yamuna Vihar, Delhi.
CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 1 of 14
Digitally signed by
SANTOSH SANTOSH KUMAR
KUMAR SINGH
Date: 2021.11.29
SINGH 17:41:08 +0500
2. Delhi Wakf Board
Through its Chief Executive Officer
5028, Darya Ganj,
New Delhi-110002. ..............Respondents
Date of institution : 23.03.2004
Date of reserved for judgment : 15.11.2021
Date of pronouncement of judgment: 29.11.2021
Decision : Petition allowed u/s
14 (1) (a) of the
DRC Act, subject to
inquiry u/s 14 (2) of
the DRC Act.
Petition withdrawn
in respect of relief
u/s 14 (1) (b) of the
DRC Act on
20.01.2010.
APPLICATION FOR EVICTION OF TENANTS U/S 14 (1)
(a) & 14 (1) (b) OF THE DELHI RENT CONTROL ACT.
JUDGMENT :-
(Defence of R-1 struck off vide order dated 07.01.2008)
1. This is a petition for eviction of tenants under clause (a) &
(b) of the proviso to sub-section (1) of Section 14 of Delhi Rent Control Act, 1958, (hereinafter referred to as 'DRC Act') preferred by the petitioner/landlord against the respondents/tenants for recovery of possession of premises, i.e., Shop No. 11386/3, Masjid Bandariya Wali, Ram Nagar Market, Qutab Road, New Delhi-110055, as shown in red colour in the site plan annexed with the petition (hereinafter referred to as the 'tenanted premises').
2. In brief, it is stated that the petitioner is a registered entity with the Registrar of Society. The respondent no. 2 vide its letter CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 2 of 14 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:41:22 +0500 dated 30.09.1993 had constituted the Managing Committee and in this regard a letter dated 19.04.1995 was issued by respondent no. 2 vide which the respondent no. 2 had given powers to the Managing Committee to file civil proceedings. The Muntizama Committee had authorized Sh. Taufiq Alam, the previous Secretary of the petitioner to file the present petition. After the resignation of previous Secretary Sh. Taufiq Alam, Sh. Nawabuddin was appointed as Secretary to continue the proceedings of this case vide its Board Resolution dated 19.04.2006. Sh. Nawabuddin, the present Secretary has seen the previous Secretary Sh. Taufiq Alam writing and signing and his signature appended on the petition.
In the petition, it is stated that initially the tenanted premises was given to Sh. Abdul Hameed Khan @ Rs. 100/- per month with electricity and the purpose for the tenancy was commercial, i.e. non-residential. The electricity meter was provided in the name of respondent no. 1, who was supposed to pay bill as per his consumption. It is stated that this tenancy was created about 35 years ago, i.e. old tenancy and the Mosque is almost about 100 years old. Premises is exempted from house tax.
It is stated that the respondent is a habitual defaulter in payment of rent and has neither paid nor tendered arrears of rent due w.e.f. May, 1999 despite repeated demands and requests. The petitioner had also duly served a legal demand notice dated 05.02.2000 regarding non-payment of rent and termination of his contractual tenancy prior to filing of the present petition.
The respondent has assigned, sub-let or otherwise parted with the possession of the tenanted premises to Sh. Abdul Rashid CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 3 of 14 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:41:36 +0500 and his son without the consent in writing of the petitioner. The respondent is not looking after his business and has no control over the business being run by sub-lettees. It is stated that the respondent had not been paying electricity bills resulted in dis- connection of his electricity and due to that reason, this has burden the petitioner with financial liability. The petitioner has also written a letter to BSES Yamuna Power Ltd. requesting the company to collect electricity charges from respondent no. 1 and the Mosque is not responsible for payment of electricity bill of respondent no. 1. The respondent has not only encroached upon the open space just in front of tenanted shop but also damaged the Mosque. The petitioner has also placed on record the photographs showing the existing position created by the respondent. Thereby, the respondent has caused damaged to the suit property and has created terror in the Mosque. The petitioner had not only informed the police but had send registered/UPC notice dated 16.06.2000 which was duly replied by the respondent on 08.07.2000. The petitioner had intimated the activities of respondent no. 1 to respondent no. 2 Delhi Wakf Board. It is being clarified that the petitioner had made respondent no. 2 as a proforma party in order to avoid any controversy and therefore, no relief is claimed against respondent no. 2. Respondent no. 1 is the main respondent against whom the relief is claimed.
Upon fore quoted facts, prayer is made for passing eviction order against the respondent no. 1 in respect of the tenanted premises.
3. Summons were served upon the respondents. Respondent CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 4 of 14 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:41:49 +0500 no. 1 & respondent no. 2 filed separate detailed written statement of defence.
Respondent no. 1 took preliminary objections that the petitioner has no authority to file the present petition on behalf of respondent no. 2 and the petitioner has suppressed the material facts and has not approached the Court with clean hands.
Respondent no. 2 has also filed the written statement and supported the version of the petitioner.
In the written statement, it is admitted by respondent no. 1 that the tenancy was originally in the name of respondent no. 1. R-1 has denied the relationship of landlord and tenant between him and the petitioner. R-1 has admitted that the rate of rent was Rs. 100/- per month. R-1 has also admitted the fact that the electricity was installed in his name in the tenanted premises. It is submitted that the son of R-1, Abdul Rashid, who is also the partner of R-1 started paying rent to the petitioner, who executed several receipts after getting the signatures of Abdul Rashid on the counterfoils of the rent receipts.
R-1 has denied the fact that he has sub-let the tenanted premises to Abdul Rashid and his son without written consent of the petitioner and it is submitted that he has not sub-let the tenanted premises to anyone. It is further submitted that Abdul Rashid, being the son and partner in the business of R-1 has been in the tenanted premises for a long period. R-1 has denied that he had made encroachment on the open space of the Mosque despite warning and therefore, taking of any action by respondent no. 2 does not arise. R-1 further denied that he has constructed or put any wooden khokha on the Mosque land. R-1 has denied that he is a habitual defaulter in making payment of rent or that CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 5 of 14 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:42:05 +0500 he has not tendered the rent since May, 1999 to 05.03.2000. It is submitted that R-1 has already send rent of this period through Money Order dated 25.02.2000 vide postal receipt no. A-3233. R-1 has denied that he has caused any damage to the Mosque or tenanted premises. It is submitted that the building of the Mosque as well as the tenanted premises are in deteriorating condition since the Managing Committee is not interesting in welfare of the Mosque, instead aiming to evict the R-1 from the tenanted premises on the false and frivolous grounds. R-1 has denied that he has brought any anti-social/gunda elements to create terror in the Mosque. Therefore, the present petition is not maintainable and liable to be dismissed being a frivolous one.
4. Replication was filed by the petitioner to the written statement of R-1, wherein he re-affirmed and re-iterated the facts mentioned in the petition and denied the defences taken by the R-
1. It is pertinent to mention here that during the proceedings in the present matter, the Ld. Predecessor was pleased to pass order u/s 15 (1) of the DRC Act on 28.09.2004 and later on, an application u/s 15 (7) of the DRC Act read with Section 151 CPC dated 22.02.2005 was filed for striking off the defence of R-1 for not complying the order dated 28.09.2004. Thereafter, another application u/s 7 Rule 11 read with Section 151 CPC dated 21.04.2005 was filed on behalf of R-1, through Abdul Rashid, Attorney Holder and this application was allowed vide order dated 04.05.2005 and the petition was dismissed.
Dismissal order dated 04.05.2005 was challenged before Ld. RCT and the same was set aside and thereafter, the matter CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 6 of 14 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:42:22 +0500 was remanded back to the concerned Court. However, the concerned court was abolished and this matter was transferred to the newly constituted court of Ms. Savita Rao, the then Ld. ARC.
Ld. ARC was pleased to decide the pending application u/s 15 (7) of the DRC Act and was also pleased to allow the same while striking off the defence of R-1 vide her order dated 07.01.2008 and the Ld. ARC was also pleased to list the matter for petitioner's evidence.
Thereafter, the respondent no. 1 had died and an appropriate application u/o 22 Rule 4 CPC was filed, which was allowed vide order dated 21.08.2009. Further, on 20.01.2010, the petitioner withdrew the present petition in respect of relief u/s 14 (1) (b) of the DRC Act against the respondent due to the death of original tenant, i.e., R-1 and in this regard, separate statement of counsel for the petitioner was recorded and in view of that, claim u/s 14 (1) (b) of the DRC Act was dismissed as withdrawn and the present petition continued in respect of Section 14 (1) (a) of the DRC Act.
Further, the Ld. ARC was also pleased to proceed against the R-1 ex-parte vide order dated 20.01.2010.
5. In support of case, the petitioner got examined through AR Sh. Nawabuddin, newly substituted Secretary in place of Sh. Taufiq Alam, previous Secretary as PW1, who tendered his evidence by way of affidavit Ex. PW1/A, relying upon the following documents :-
1) Certificate of Registrar of Society in favour of Masjid Bandariya Wali is Ex. PW1/1.
2) Letter dated 30.09.1993 is Ex. PW1/2. CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 7 of 14 Digitally signed by
SANTOSH SANTOSH KUMAR
KUMAR SINGH
Date: 2021.11.29
SINGH 17:42:35 +0500
3) Letter dated 19.04.1995 by R-2 to the petitioner is Ex. PW1/3.
4) Authority letter dated 19.04.2006 in favour of petitioner is Ex. PW1/4.
5) Site plan is Ex. PW1/5.
6) Legal demand notice dated 05.02.2000 is Ex. PW1/6 and its registered postal receipts and AD Card are Ex. PW1/7 and Ex. PW1/8 respectively.
Thereafter, PE was closed vide order dated 20.01.2010 as the LRs of respondent no. 1 were proceeded ex-parte and the matter was listed for final arguments. Further vide order dated 07.02.2011, LRs of respondent no. 1 were granted an opportunity to cross-examine PW1 and R-2 was further proceeded ex-parte vide order dated 31.01.2013. The said order dated 31.01.2013 was set aside by the Ld. ARC upon the application u/o 9 Rule 7 read with Section 151 CPC moved on behalf of R-2 vide order dated 01.07.2013.
6. In support of case, Sh. Mehfooz Mohd., employee of R-2 examined on behalf of the R-2, who tendered his evidence by way of affidavit Ex. RW1/A and has also filed one additional affidavit Ex. RW1/B and relied upon the following documents :-
1) Resignation letter of Sh. Taufiq Alam as Secretary is Ex. RW1/1.
2) Intimation regarding the resignation and request for appointment of Sh. Nawabuddin dated 25.05.2006 is Ex. RW1/2.
3) Appointment letter dated 08.05.2012 of Sh. Nawabuddin as Secretary of the petitioner is Ex. RW1/3. CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 8 of 14 Digitally signed by
SANTOSH SANTOSH KUMAR
KUMAR SINGH
Date: 2021.11.29
SINGH 17:42:52 +0500
4) Letter dated 03.01.2005 by Chief Executive Engineer, Delhi Wakf Board in favour of RW1 is Ex. RW1/4.
5) Letter dated 14.09.2010 and letter dated 12.07.2011 are Ex. RW1/5 & Ex. RW1/6 respectively.
RW1 was cross-examined by Ld. Counsel for the petitioner and the RE was closed on 10.12.2015.
7. Final arguments heard. I have also gone through the material on record carefully.
8. Cause of action for eviction on the ground of non-payment of rent constitutes the following facts :-
(i) Relation of landlord and tenant.
(ii) Existence of arrears of rent legally recoverable on the date
of notice of demand.
(iii) Service of notice of demand in the manner prescribed in
Section 106 of Transfer of Property Act.
(iv) Failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within 2 months from the date of service of notice.
9. So far as the fact of relationship of landlord and tenant between the parties is concerned, respondent no. 1 has disputed the relationship.
The respondent no. 1 has categorically stated in his written statement that the tenancy was originally in the name of respondent no. 1. However, he has denied the relationship of landlord and tenant between him and the petitioner.
CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 9 of 14 Digitally signed by SANTOSH SANTOSH KUMAR
KUMAR SINGH
Date: 2021.11.29
SINGH 17:43:06 +0500
10. In order to prove the relationship, the petitioner has categorically deposed that the tenanted premises was rented out to the respondent no. 1 and the electricity meter was also provided to him, (i.e, the respondent no. 1), who used to pay bill according to the consumption. It is stated that this fact has been admitted by the respondent no. 1 in his written statement. He deposed that the respondent no. 1 has also admitted the fact that his son, namely, Abdul Rashid, who is also a partner of respondent no. 1 started paying the rent to the petitioner. It is further stated that Sh. Abdul Rashid, being son of respondent no. 1 and the partner in the business of respondent no. 1 has been in the tenanted premises for a long period. It is submitted that the respondent no. 1 had already sent the rent w.e.f. May, 1999 to 05.03.2000 through Money Order on 25.02.2000 vide postal receipt No. A-3233.
Perusal of evidence and documents on record clearly exhibit that there is a categorical admission that the respondent no. 1 has been in the tenanted premises alongwith his son Abdul Rashid for a long period. Further, there is categorical admission in para no. 18 (a) of the WS of respondent no. 1 to the effect that he (i.e., respondent no. 1) had send the rent w.e.f. May, 1999 to 05.03.2000 through Money Order on 25.02.2000 vide postal receipt No. A-3233 to the petitioner.
In view of the above discussion, it has been established that there exists relationship of landlord and tenant between the petitioner and respondent no. 1.
11. Now, it is to be seen whether there exists any arrears of rent to be paid by R-1 and whether the Legal demand notice CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 10 of 14 Digitally signed SANTOSH by SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:43:22 +0500 dated 05.02.2000 Ex. PW1/6 was duly served upon R-1 and whether R-1 had failed to make the payment of rent within 2 months of service of notice, so as to make out a cause of action against R-1/tenant.
12. As per the case of the petitioner, R-2, i.e., Delhi Wakf Board is the landlord of the suit premises/tenanted premises and the petitioner society/committee has been constituted by R-2 for managing the affairs of the petitioner. It is stated that on account of continuous default in payment of rent, petitioner has sent a demand notice dated 05.02.2000, the same is Ex. PW1/6 through registered post Ex. PW1/7 and through original AD Card Ex. PW1/8 and the same legal notice was served upon the respondent no. 1, who had received it on 07.02.2000. However, the R-1 had failed to tender the rent.
The R-1 in his written statement in para no. 18 (b) had simply denied the contents of para no. 18 (b) of the petition. Registered postal receipts and AD Card are Ex. PW1/7 & Ex. PW1/8. Registered AD Ex. PW1/8 bears the signature of the respondent no. 1 in Urdu language with date.
13. Now the Court has to decide whether the legal demand notice Ex. PW1/6 was actually served upon the respondent or not.
14. In the written statement of R-1, wherein he has categorically denied the contents of para no. 18 (b) of the petition in his written statement and he has not submitted anything with regard to the legal demand notice. However, on the other hand, CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 11 of 14 Digitally signed SANTOSH by SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:43:40 +0500 the petitioner has filed on record Ex. PW1/6, i.e., legal demand notice and postal receipts Ex. PW1/7 and AD Card Ex. PW1/8. However, on perusal of evidence of PW1 reveals that not even a single question/suggestion has been put to him regarding service of legal demand notice or regarding the postal receipts and AD Card. Therefore, legal demand notice Ex. PW1/6, its postal receipt Ex. PW1/7 and AD Card Ex. PW1/8 remains uncontroverted and unquestionable and hence, becomes a crucial evidence regarding the service of legal demand notice Ex. PW1/6 and this fact has now been proved by the petitioner on record to the effect that the legal demand notice was served upon the respondent on 07.02.2000.
15. Now the Court has to decide whether there existed any arrears of rent to be paid by the respondent and whether the respondent had paid the same within 02 months of service of notice upon him.
16. In the preceding para, it has been duly proved that the legal demand notice Ex. PW1/6 was duly served upon the respondent. It is contended by the respondent that he is not a habitual defaulter in payment of rent and he had tendered the rent through Money Order on 25.02.2000 vide postal receipt no. A-3233 for the period of May, 1999 to 05.03.2000 @ Rs. 100/- per month. However, the said Money order has not been filed by him (R-1) on record.
On perusal of evidence and material on record reveals that the Money Order dated 25.02.2000 sent by R-1 has not been proved by the R-1 on record and there is a mere averment in this CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 12 of 14 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:43:55 +0500 regard in the WS. R-1 had not annexed copy/photocopy of the Money Order. Moreover, the petitioner has already proved the service of legal demand notice upon R-1. Meaning thereby that the respondent no. 1 has not paid any rent in respect of the tenanted premises to the petitioner. Hence, in view of the above discussion, which proves that there existed arrears of rent since, May, 1999 which was not paid by R-1 within the period of two months of service of legal demand notice upon him.
17. It has also been contended by R-1 that the present petition was not maintainable as the same was filed without authority of and resolution by Delhi Wakf Board.
However, in the replication it was submitted by the petitioner that the Delhi Wakf Board was the landlord of the suit property and the Managing Committee constituted by the Delhi Wakf Board for the management of affairs of Mosque, i.e., petitioner is authorized to file civil proceedings in respect of the Mosque.
In evidence as well as on material on record reveals that document Ex. PW1/3 was filed by the petitioner, wherein the petitioner was authorized to file civil proceedings in respect of the Mosque. Moreover, the previous Secretary Sh. Taufiq Alam, who instituted the present eviction petition had resigned vide his resignation letter Ex. RW1/1 and Sh. Nawabuddin was appointed as a new Secretary vide Ex. RW1/3 which are on record. Perusal of all these documents exhibit that this petition is maintainable as legal requirements have already been met by the petitioner.
18. In view of the above discussion, I am of the opinion that CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 13 of 14 Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SINGH Date: 2021.11.29 SINGH 17:44:27 +0500 the petitioner has proved all the ingredients of Section 14 (1) (a) of the DRC Act, 1958. Hence, eviction petition filed by the petitioner against R-1 (through LRs) u/s 14(1) (a) of the DRC Act is allowed.
However, eviction of R-1 (through LRs) would be subject to his entitlement u/s 14 (2) of the DRC Act, for which separate enquiry would be conducted and for that purpose separate miscellaneous file be prepared by the Ahlmad.
19. Issue Court notice to the R-1 (through LRs) who may be served upon copy of this judgment. Process server is directed that the R-1(through LRs) be served by way of affixation, in case of refusal / non-availability / lock on the premises. Further, photographs of the premises be obtained at the expenses of the petitioner which may be filed in the Court alongwith his report by the process server.
20. Nazir is directed to file a report, whether the R-1 (through LRs) has ever deposited the rent. A copy of the judgment be placed in the miscellaneous file.
No order as to cost.
21. File be consigned to record room.
Digitally signed SANTOSH by SANTOSH
KUMAR KUMAR SINGH
Date: 2021.11.29
SINGH 17:44:45 +0500
Announced in open Court (Santosh Kumar Singh)
on 29th Day of November, 2021 CCJ cum ARC (Central)
Tis Hazari Courts, Delhi
CIS No. E-80626/16 Masjid B.Wali Welfare Association Regd. Vs. Abdul Hameed Khan Page 14 of 14