Delhi District Court
Sh. Rajiv Kumar vs Sh. Dinesh Chander Gupta on 10 January, 2019
IN THE COURT OF Ms HARLEEN SINGH SCJ/RC(EAST),
KARKARDOOMA COURTS, DELHI
RC/ARC No. 869/16
Date of institution: 19.01.2016
Date of Order : 10.01.2019
1. Sh. Rajiv Kumar
S/o Late Sh May Ram
2. Mrs. Suman
W/o Sh. Rajiv Kumar
Both R/o L10, Vijay Chowk
Laxmi Nagar, Delhi110092 ....... Petitioners
Versus
Sh. Dinesh Chander Gupta
S/o Sh. Chander Bhan Gupta
Prop M/s Chander Cloth House
L9, Vijay Chowk, Laxmi Nagar
Delhi110092 .....Respondent
EVICTION PETITION UNDER SECTION 14(1)(a) OF THE DELHI
RENT CONTROL ACT, 1958
JUDGMENT
1. By way of the present petition, the petitioners are seeking eviction of the respondent under Section 14 (1) (a) of the Delhi Rent RC/ARC No. 869/16 Page 1 of 15 Control Act, 1958 (hereinafter referred to as the DRC Act) in respect of one shop on the ground floor of property no. L9, Vijay Chowk, Laxmi Nagar Delhi110092, as shown in red in the site plan filed by the petitioners (hereinafter referred to as the tenanted premises).
2. As per the petition, the case of the petitioners is that :
2.1 The respondent is running a shop in the name of M/s Chander Cloth House in the tenanted premises and the monthly rate of rent is Rs. 500/, excluding all other charges.
2.2 That the tenanted premises was let out by the previous owner to the respondent for nonresidential purpose and the date of letting is not known.
2.3 That the respondent is an old tenant in the tenanted premises/shop and was inducted by the previous owner Smt. Kiranwati W/o Sh. Dalip Chand. After her death, her son Sh. Rajesh Kumar became the owner of property no. L9, Vijay Chowk, Laxmi Nagar, Delhi 110092.
2.4 That the petitioners purchased the said property from Sh.
Rajesh Kumar S/o Late Sh Dalip Chand vide sale deed dated 11.10.2013 duly registered in the office of SubRegistrarVIII A, Preet Vihar, Delhi and the respondent became a tenant of the petitioners by operation of law. 2.5 That the petitioners repeatedly requested the respondent to make the payment of rent, but he always avoided the same on one pretext RC/ARC No. 869/16 Page 2 of 15 or another.
2.6 That finding no other option, the petitioners sent a demand notice dated 20.10.2015 to the respondent, calling upon the respondent to pay the entire arrears of rent w.e.f 11.10.2013 i.e. from the date of purchase of the above mentioned property, alongwith interest at the rate of 15% per annum.
2.7 That the said notice was sent to the respondent at the tenanted premises by registered A/D post, which he refused. Later on, a copy of the said notice was sent at his residential address, which was delivered to him. Despite service of the said notice, the respondent has neither paid nor tendered the arrears of rent and has rendered himself liable for eviction.
3. Written Statement was filed on behalf of the respondent on 07.09.2016, wherein the respondent has contended that: 3.1 That the petition is without any cause of action and hence the same is liable to be dismissed under Order VII Rule 11 CPC. Further, the petitioners have not come to the court with clean hands. 3.2 That the petition is not maintainable as no relationship of landlord and tenant exists between the parties. 3.3 That the petition is not maintainable as mutation of the tenanted shop has been done in favour of the respondent. 3.4 That the respondent is the owner/landlord of the tenanted premises as he had purchased the same from Sh. Rajesh Kumar for a total RC/ARC No. 869/16 Page 3 of 15 sum of Rs 5 Lakhs in the year 20052006, but Sh. Rajesh Kumar did not execute any documents in favour of the respondent, inspite of repeated requests.
3.5 That the respondent regularly paid property tax to the concerned authority.
3.6 That it is denied that the petitioners are the landlords of the property in question. It is also denied that the rate of rent is Rs. 500/ per month, exclusive of other charges. It is contended that when no relationship of landlord and tenant exists between the parties, the question of the monthly rent being Rs 500/ does not arise at all. 3.7 That it is denied that the respondent is an old tenant in the tenanted premises/shop or that he was inducted by the previous owner Smt. Kiran Wati.
3.8 That no notice regarding arrears of rent was ever served upon the respondent. Further, no sale or purchase notice was ever issued to the respondent by Sh Rajesh Kumar or the petitioners respectively. 3.9 That no documentary evidence has been produced by the petitioners regarding the tenancy of the respondent in the property in question.
4. Replication to the WS was filed on behalf of the petitioners, wherein the contents of the WS have been denied and those of the petition have been reaffirmed.
RC/ARC No. 869/16 Page 4 of 155. After filing of replication, none from the side of the respondent ever appeared before the court. Counsel for respondent last appeared on 24.11.2016. Consequently, vide order dated 01.05.2017, the respondent was proceeded exparte.
6. Vide order dated 22.08.2017, order under Section 15 (1) read with Section 15(3) of the DRC Act was passed by the learned predecessor of this court, and the respondent was directed "to make payment of rent pending due two months prior from the date of filing of the present petition which is 18.01.2016 and till date @ Rs 100/ per month. The rent be deposited within 15 days directly into the account of the petitioner as detailed at para no. 19 of the present petition. The rent be deposited with statutory interest @ 15% per annum. All future rent be continued to be paid by the respondent directly into the account of the petitioner till further orders."
7. Thereafter, matter was listed for petitioner's evidence. Petitioner no.1 Sh. Rajiv Kumar was examined as PW1 in the exparte evidence. He deposed on the same lines as the petition. None from the side of the respondent appeared to crossexamine PW1. PW1 relied upon the following documents :
(i) Ex.PW1/1 which is the site plan.
(ii) Ex.PW1/2 (colly 20 pages) (OSR) which is the copy of Sale Deed
RC/ARC No. 869/16 Page 5 of 15
dated 11.10.2013.
(iii) Ex.PW1/3 (colly 2 pages) which is the legal notice dated 20.10.2015.
(iv) Ex. PW1/4 (colly 3 pages) which are the two postal receipts, refused envelope and tracking report.
(v) Ex.PW1/5 (colly 9 pages) which is the certified copy of plaint filed by the respondent against the earlier owner Rajesh.
(vi) Ex.PW1/6 (colly 6 pages) which is the certified copy of orders/proceedings of the suit Ex PW1/5.
8. I have heard the exparte final arguments advanced by the counsel for the petitioners and perused the entire record. None from the side of the respondent ever appeared to advance final arguments, despite ample opportunity granted.
Three judgments were filed and relied upon by the counsel for petitioners. The same are as under:
(i) H.M Doyal & Co. vs Ram Nath [1985 Rajdhani Law Reporter 414].
(ii) Rakesh Kumar, Shakti Kumar vs H.E Tools [1988 Rajdhani Law Reporter (SC) 269].
(iii) The Life Insurance Corporation of India vs The Standard Button Agency [Civil Revision No.124D of 1965 decided by the Hon'ble High Court of Delhi on 31st March, 1971].
RC/ARC No. 869/16 Page 6 of 159. To prove a case under Section 14 (1) (a) of DRC Act, the petitioners are 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; and
(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.
Accordingly, I now proceed to discuss the ingredients of Section 14 (1) (a) of DRC Act which the petitioners are required to prove. The ingredients are taken up for consideration one by one: 9.1 Relationship of Landlord and Tenant 9.1.1 As per the petitioners, the respondent was inducted as a tenant in the tenanted premises by the previous owner Smt. Kiran Wati. After her death, her son Rajesh Kumar became the owner of the property RC/ARC No. 869/16 Page 7 of 15 no. L9, Vijay Chowk, Laxmi Nagar, Delhi110092, of which the tenanted premises forms a part. Thereafter, the petitioners purchased the said property from Rajesh Kumar vide a Registered Sale Deed dated 11.10.2013. The respondent became the tenant of the petitioners by operation of law.
9.1.2 On the other hand, the respondent has claimed himself to be the owner/landlord of the tenanted premises. He has denied any relationship of landlord and tenant between him and the petitioners. It is the case of the respondent that he had purchased the tenanted shop from Rajesh Kumar in the year 20052006 for a total sum of Rs 5 Lakhs, however no documents were executed in his favour. Mutation of the tenanted shop in favour of the respondent has been done and he regularly pays the property tax in respect of the said premises. 9.1.3 In support of their petition, the petitioners have examined the petitioner no.1 Rajiv Kumar as PW1, who has deposed about the ownership of the petitioners in respect of the property in question. The same is on the lines of the petition. None from the side of the respondent appeared to crossexamine PW1 about the same. This unrebutted testimony of PW1 is also supported with copy of the above mentioned Sale Deed dated 11.10.2013 (Ex PW1/2) executed by Rajesh Kumar in favour of the petitioners.
9.1.4 On his part, the respondent has merely contended that no property documents were executed at the time he allegedly purchased the property in question from Rajesh Kumar in the year 20052006. It is RC/ARC No. 869/16 Page 8 of 15 common knowledge that any salepurchase of immovable property can be done only through execution of documents which are to be duly registered. It cannot be believed that no documents whatsoever were executed at the time of the alleged sale of the property in question to the respondent by Rajesh Kumar. The respondent has not even mentioned the exact date, month or year of the said transaction. This makes it amply clear that the respondent has tried to raise a frivolous defence in the present petition.
9.1.5 The order dated 22.08.2017 of the learned predecessor of this court also notes that as per the certified copy of the civil suit no. 505 dated 19.11.2008 filed by the petitioners (Ex PW1/5), the said suit was filed by the respondent herein against Rajesh S/o Sh. Dalip Chand and para 2 of the same states that the respondent had taken the tenanted premises on rent from the father of Rajesh namely Dalip Chand at a monthly rent of Rs 100/ for running a cloth business by the name of M/s Chander Cloth House. It is further noted in the said order that on expiry of Sh Dalip Chand, the respondent and his mother started paying rent of the tenanted premises to the mother of Rajesh, namely Smt. Kiran Wati. It is further noted that after her death, Rajesh never demanded any rent from the respondent. It is also noted in the said order that there is a clear admission on the part of the respondent regarding the landlordship of the petitioners qua the respondent. There is nothing on record to show that the said order dated 22.08.2017 was ever challenged by the respondent. The observations/findings contained in the said order have accordingly RC/ARC No. 869/16 Page 9 of 15 attained finality.
9.1.6 In view of the above discussion, it stands established that the petitioners are the landlords of the premises in question and the respondent is their tenant. Accordingly, relationship of landlord and tenant between the parties stands established.
9.2 Rate of Rent 9.2.1 As per PW1, the rate of rent of the tenanted premises is Rs. 500/ per month.
9.2.2 On the other hand, the respondent has, in his previous civil suit no. 505/2008, contended the monthly rent to be Rs 100/ per month. However, in the present petition, the respondent has taken a stand that in the absence of landlordtenant relationship, no question of the rate of rent arises.
9.2.3 The testimony of PW1 regarding the rate of rent being Rs 500/ per month is unrebutted. There is no reason to doubt the same. 9.2.4 In these circumstances, for want of better evidence/proof, the rate of rent is taken to be Rs.500/ per month.
9.3 Arrears of Rent 9.3.1 As per the petitioners, the respondent is in arrears of rent RC/ARC No. 869/16 Page 10 of 15 since 11.10.2013.
9.3.2 On the other hand, the respondent has taken a stand that there is no question of paying the rent, since there is no relationship of landlord and tenant between him and the petitioners. 9.3.3 It has already been established from the above discussion that there exists a relationship of landlord and tenant between the petitioners and the respondent.
9.3.4 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, Bulandshahar & Ors. [1994 AIR (Allahabad) 59] that the onus to show payment of rent lies on the tenant. It was also held in Raghubir Prasad Vs. Rajendera Kumar Gurudev [1993 (2) R.C.R. (Rent) 234] that on default in payment of rent, the onus to show payment of rent lies on the tenant. 9.3.5 It was also held by the Hon'ble Apex 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 the tenant to prove that he has paid the rent. 9.3.6 The present petition was filed in January, 2016. The petitioners are entitled to recover only the legally recoverable arrears of rent, period of limitation for which is three years. Thus, the petitioners are entitled to recover the arrears of rent w.e.f. January, 2013.
RC/ARC No. 869/16 Page 11 of 15Admittedly, the respondent has not paid any rent since 11.10.2013 to the petitioners. Accordingly, the respondent is held to be in arrears of rent w.e.f. 11.10.2013.
9.4 That a Valid Legal Demand Notice was Duly Served upon the Respondent 9.4.1 As per the testimony of PW1, a legal notice/demand notice dated 20.10.2015 was sent to the respondent, calling upon him to pay the entire arrears of rent w.e.f 11.10.2013 i.e. from the date of purchase of the property by the petitioners, along with interest at the rate of 15% per annum. PW1 has further testified that despite the same, the respondent has neither paid nor tendered the arrears of rent. The testimony of PW1 in this regard is unchallenged and unrebutted. The petition also states that the said notice was sent to the respondent by registered AD post at the tenanted premises, which he refused. It is further contended that a copy of the notice was sent to the respondent at his residential address, and the same was delivered to him.
9.4.2 In his Written Statement, the respondent has stated that no notice regarding the arrears of rent was ever served upon him. 9.4.3 In his testimony, PW1 has proved two postal receipts dated 21.10.2015 (in respect of the Laxmi Nagar address) and 29.10.2015 (in respect of the Paschim Vihar address). PW1 has also proved the registered AD received back with a report of refusal. Tracking report of RC/ARC No. 869/16 Page 12 of 15 India Post shows the date of delivery as 30.10.2015. All these documents are Ex. PW1/4 (colly. 3 pages). There is no crossexamination of PW1 in respect of the said documents or his testimony regarding service of the legal notice dated 20.10.2015 upon the respondent. 9.4.4 A presumption of service of the above mentioned legal notice can also be drawn in view of Section 27 of the General Clauses Act. Even as such, it has been observed by the Hon'ble Delhi High Court in the case of Santosh Solanki v. Dada Dev Prabhandhak Sabha (Barah Gaon) Palam [ decided by Hon'ble Delhi High Court on 22.04.2014 in RSA No. 105/2014 and CM No. 6873/2014], that it has been held by the Hon'ble High Court of Delhi in the judgment title as Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) reported as 183 (2011) DLT 712 that: ".........7.(ii). The Supreme Court in the case of Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF), 146 (2008)DLT 217(SC):1 (2008) SLT 195:2008(2) SCC 728 has held that the tenancy would stand terminated under the general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (Supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant". 9.4.5 Accordingly, it stands established that a valid legal demand notice was duly served upon the respondent by the petitioners.
9.5 That despite service of legal demand notice, respondent has RC/ARC No. 869/16 Page 13 of 15 neither paid nor tendered the entire arrears of legally recoverable rent.
9.5.1 As has been discussed above, it has been established that the respondent has neither paid nor tendered rent to the petitioners since 11.10.2013 and he has already been held to be in arrears of rent since then. The rate of rent has been established to be Rs.500/ per month. 9.5.2 Accordingly, it stands established that the respondent neither paid nor tendered the entire arrears of legally recoverable rent to the petitioners, within two months of receipt of the legal demand notice dated 20.10.2015.
10. CONCLUSION 10.1 From the above discussion, it is clear that the petitioners have proved all the ingredients of Section 14 (1) (a) of the DRC Act. Hence, the present petition is decided in favour of the petitioners and against the respondent in respect of the tenanted premises i.e. one shop on the ground floor of property no. L9, Vijay Chowk, Laxmi Nagar, Delhi110092, as shown in red in the site plan filed by the petitioners (Ex.PW1/1). Respondent is therefore held to be a defaulter within the meaning of Section 14 (1) (a) of the DRC Act.
10.2 Accordingly, the respondent is directed to pay arrears of rent w.e.f. 11.10.2013 @ Rs.500/ per month till date alongwith statutory RC/ARC No. 869/16 Page 14 of 15 interest @ 15% per annum, as per Section 26 of DRC Act, to the petitioners within one month from today. The payment/deposit made by the respondent under Section 15 (1) of the DRC Act is liable to be adjusted.
10.3 Separate file be maintained with respect to Section 14 (2) of the DRC Act and be listed for 26.03.2019.
Digitally signed byHARLEEN HARLEEN SINGH Location: Delhi SINGH Date: 2019.01.10 17:15:39 +0530 Announced in the open Court (Harleen Singh) on this 10th day of January, 2019 SCJ/RC (East) Karkardooma Courts, Delhi RC/ARC No. 869/16 Page 15 of 15