Delhi District Court
Smt. Ramrati vs Shri Subhash Gupta on 7 July, 2007
1
IN THE COURT OF SHRI SANJEEV AGGARWAL:
RENT CONTROLLER : DELHI
Petition No. E-750/06
Smt. Ramrati
W/o late Pt. Yad Ram Sharma
R/o D-261, Bhajanpura,
Delhi-53. ... Petitioner
Versus
Shri Subhash Gupta
S/o Shri N.D. Gupta
Shop no.5, Pt. Yad Ram Market,
Tanky Road, Opp. Dispensary
Bhajanpura, Delhi-53. ... Respondent
Date of institution : 2.8.99
Judgment reserved on : 7.7.07
Date of decision : 7.7.07
JUDGMENT
Vide this judgment, I will dispose off an eviction petition on the ground under Section 14(1)(a)(g)&(j) of the Delhi Rent Control Act (hereinafter referred to as the DRC Act). However, the counsel for the petitioner Shri C.P. Tyagi, Advocate had made a statement on 5.5.07 that he is not pressing the ground under Section 14(1)(g)&(j) of the DRC Act, accordingly the eviction petition on the ground under Section 14(1)(g)&(j) of the DRC Act was dismissed as not pressed. Accordingly, only the facts which are germane for deciding the eviction petition under Section 14(1)(a) of the Act are being reproduced hereunder.
2. It is stated that the petitioner is the landlord of the shop no.6, Pt. Yad Ram Market, Tanky Road, Opp. Dispensary, Bhajanpura, Delhi 2 and the respondent is a tenant in respect of the said shop as shown red in the site plan at a monthly rent of Rs.425/- without electricity and water connection. The respondent is stated to be an old tenant. It is also stated that the petitioner is a widow/landlady under the Will dated 8.12.1995 of the suit premises, which were let out to the respondent initially at the monthly rent of Rs.385/- per month and lateron it was increased to Rs.425/- per month w.e.f. April, 1999 without electricity and water connection. It is also alleged that the respondent had paid rent upto July, 1998 to the petitioner in cash and lateron respondent stopped paying rent to the petitioner and has not paid the rent despite service of the legal demand notice dated 15.3.07. Hence, the petitioner was constrained to file the present eviction petition.
3. Written statement has been filed by the respondent in which the relationship of landlord and tenant between the parties is not disputed. However, the extent of tenancy premises is stated to be wrong and it is stated that correct measurement of the shop is 17"x9" ft. The service of the legal demand notice is also not denied.
4. Regarding the arrears of rent, it is stated that entire rent has already been paid to the petitioner and the same was accepted by the sons of the petitioner sons Sri Dutt Sharma and Ravi Dutt Sharma and the receipt of the same was issued by them and that the petitioner had accepted the rent from the respondent without any protest till January, 1999, but after January, 1999 when the respondent filed a case against the 3 petitioner's son which is pending in the court of ld. Civil Judge, Delhi and it is stated that rent for the month of February, 1999 was sent, but the petitioner refused to accept and thereafter the same was sent by way of demand draft and the same was accepted by the petitioner and thereafter the entire rent was paid by way of money orders, but the same was refused to accept and thereafter finding no alternative, the respondent had deposited the rent upto November, 1999 in the court of then ld. ARC Sh. D.K. Sharma. Hence, it is stated that there are no arrears of rent outstanding on the date of filing of the present eviction petition and the petition is without any cause of action and liable to be dismissed.
5. Replication has been filed by the petitioner in which the averments made in the written statement are vehemently denied and those made in the petition are reaffirmed as correct.
6. An order under Section 15(1) of DRC Act was passed vide order dated 17.1.00 of ld. Predecessor by virtue of which the respondent was directed to pay or deposit the entire arrears of rent w.e.f. 1.12.1999 till date at the rate of Rs.425/- per month within one month and also future monthly rent at the said rate during the trial.
7. Thereafter the respondent moved an application under Section 151 CPC with the prayer to withdraw the earlier affidavit filed in the examination in chief and to file fresh amended affidavit on the record, which application was dismissed vide detailed order dated 7.8.04.
8. Thereafter an application under Order 6 Rule 17 CPC was 4 moved on behalf of the respondent for amendment of para 3 of the preliminary objections, which application was allowed vide order dated 30.11.04 of the ld. Predecessor whereby instead of filing the amended written statement, the respondent was directed to file additional written statement with the amended paras with an advance copy to the opposite party subject to costs of Rs.300/-.
9. The petitioner in support of her case has examined her attorney Sh. Shiv Dutt Sharma as PW1. In rebuttal, the respondent has examined himself as RW1. He has examined one more witness Sh. Musharaf Ahmad another tenant in the shop no.4 as RW2. No other witness have been examined by the either parties.
10. I have heard the ld counsel for the petitioner, ld. counsel for the respondent and have perused the record. The ld. Counsel for the petitioner has also relied upon the judgment namely, 28(1985) DLT 212, and 1992(1) RCR 118.
11. To make out a case under Section 14(1)(a) of the Act, the petitioner has to prove the following ingredients :
(i) That there is a relationship of landlord and tenant between the parties
(ii) That a valid legal demand notice was duly served upon the respondent/tenant
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.
My findings on the above ingredients are as under :
(i) That there is a relationship of landlord and tenant between the parties.5
The relationship of landlord and tenant between the parties is not disputed as the respondent has not denied para 3(a)&(b) of the petition. Accordingly, I hold that there is a relationship of landlord and tenant between the parties.
(ii) That a valid legal demand notice was duly served upon the respondent/tenant The service of the legal demand notice dated 15.3.99 is also not denied as the respondent has stated in para 18(b) of the written statement that, it is a matter of record. However, the counsel for the respondent has argued that the said legal demand notice is not at all valid demand notice as filing of the eviction petition under Section 14(1)(a) of the DRC Act contemplates that there should be a valid legal demand notice in the manner provided under Section 106 of the Transfer of Property Act and which is a mandatory provision and has argued that in the demand notice relied upon by the petitioner no arrears of rent have been mentioned which fact has also been admitted by the petitioner in his cross examination, therefore, it is no demand notice in the eyes of law, and therefore, the eviction petition deserves to be dismissed on the said ground alone.
12. On the other hand, the counsel for the petitioner has relied upon the judgment 28(1985) DLT 212 H.M. Doyal Co. Vs. Ram Nath Chitkara & ors. in which it was held as under:-
"Held that according to Section 14(1)(a) of the Act a landlord is only required to send a notice demanding arrears of rent and the tenant on receipt of notice is under a duty to pay or tender 6 the whole of the arrears of rent legally recoverable from him within two months. The only duty cast upon the landlord to send a notice demanding arrears of rent. The clause (a) of the proviso to Section 14(1) of the Act does not require that the notice of demand shall state the amount due from the tenant. A notice of demand may not mention the amount at all. It may simply ask the tenant to pay the arrears which he has not paid. As soon as a notice of demand is served, it is the duty of the tenant to pay such amount as he thinks is due from him and if ultimately it is found that the amount paid by the tenant was the correct amount, the landlord's petition for eviction will be dismissed. There can be no justification for the tenant to remain silent and not pay even the amount, which according to him is due and then to claim that the notice was invalid and he was not liable to eviction. Under Section 26 of the Act a tenant is required to pay rent within the time fixed by contract and in the absence of such contract by the 15th day of month next following the month for which it is payable. Further Section 27 of the Act provides for deposit of rent by the tenant in case the landlord does not accept any rent tendered by the tenant."
The said judgment is squarely applicable to the facts of the present case as in the legal demand notice Ex.AW1/2 in para 3, it is clearly mentioned that the respondent is regular defaulter in making payment of rent. Accordingly the said notice clearly meets out all the requirements of Section 106 of the Transfer of Property Act as it is in writing, and it has been sent to the tenant through the counsel vide registered post, and further it has been held in the judgment 1960 M.P.J. J. 1241 "landlord may, in the notice, make a blank demand without mentioning how much rent is due. In such an event, the tenant will have to pay or tender what he believes to be due." and also it has been held in the judgment 1977 (2) RCJ 49 (Gujrat) "merely because notice claims more amount than due, does not make it ineffective or invalid." In view of the aforesaid proposition of law, the notice Ex.PW1/2 in para 3 of which it 7 has been clearly mentioned that the respondent was a regular defaulter in payment of rent and it was further mentioned in the legal notice of demand asking the respondent to vacate the premises. Therefore, the respondent was clearly put to notice vide afore notice either to pay arrears of rent or to vacate the premises. Therefore, the said legal notice meets out all the requirements of Section 106 of the Transfer of Property Act & Section 14(1)(a) of DRC Act. Accordingly, it is a valid legal demand notice in view of the aforesaid settled law.
13. Regarding the site plan, it is the case of the respondent that correct measurement of the shop in question is 17ft. X 9ft. as per his stand taken in the written statement. However, RW1 in his cross examination has admitted the site plan Ex.AW1/1 as correct. He further stated that "it is correct that I have mentioned in my affidavit the measurement of the shop as 17'x9' but in the site plan Ex.AW1/1 it is 7.6 x 16' and the respondent has not filed or proved any counter site plan. Accordingly, the site plan filed by the petitioner has been duly proved which is Ex.AW1/1.
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.
Regarding the arrears of rent, it is the stand of the petitioner that the respondent is in arrears of rent w.e.f. July, 1998 which he has not paid nor tendered despite the service of the legal demand notice dated 15.3.99. The defence of the respondent is that the rent till January, 1999 has been paid by way of rent receipts Ex.RW1/A to Ex.RW1/C which rent 8 was collected by the sons of the petitioner Sri Dutt Sharma and Ravi Dutt Sharma and rent thereafter for the period February, 1999 was sent to the petitioner's son by money order which was accepted by the sons of the petitioner and rent for the month of March, 1999 was again sent by the respondent which was also accepted by the sons of the petitioner.
14. In the present case, the counsel for the respondent has argued that evidence of AW1 is not admissible in evidence in view of the judgment AIR 2005 SC 439 wherein it was held as under :
"The power of attorney holder does have the personal knowledge of the matter of the appellants and therefore, he can neither depose on his personal knowledge nor can he be cross examined on those facts, which are to the personal knowledge of the principal."
He has further argued that he is only a power of attorney and he cannot have knowledge about the facts of the present case and he cannot depose on behalf of the principal about the facts, which are in her knowledge. The said argument of the counsel for the respondent is without any substance as PW1 has proved the power of attorney which is mark A. He has stated that the original of which has been filed in another case. I have perused the original which has been filed in case No. E-751/06, which is another connected case listed for judgment today in which the original power of attorney has been filed. Accordingly, the said mark A is duly admissible in evidence and further AW1 is none other than the son of the 9 petitioner, and accordingly, it cannot be said that AW1 has no knowledge about the facts of the present case. Rather it is the defence of the respondent that they have been paying the rent to the sons of the petitioner including AW1 and the rent in this manner has already been paid till January, 1999 by way of receipts and thereafter by way of money order. Accordingly, it does not lie in the mouth of the respondent to say that AW1 is not aware of the facts of the present case, when he has been himself saying that sons of the petitioner have been collecting the rent from him. Accordingly, it cannot be said AW1 is not aware about the facts of the present case or he cannot depose on behalf of the petitioner. Accordingly, the said judgment is not applicable to the peculiar facts of the present case.
15. PW1 has stated on oath that rent w.e.f. July, 1998 to November, 1999 has not been received from the respondent and AW1 has denied the suggestion that during the life time of his father and after his death he and Sri Dutt Sharma used to collect the rent from the respondent against rent receipts and AW1 has also denied the suggestion that petitioner has received the rent upto 31.1.99 against valid rent receipt and he has also denied the suggestion that these receipts were signed by him and Sri Dutt Sharma. He has categorical stated in his cross examination that petitioner has not received rent for the month of February, 1998 to April, 1999. RW1 has relied upon three rent receipts Ex.RW1/1 to Ex.RW1/C covering the rent for the period 1.7.98 to 31.1.99. A suggestion 10 was given to RW1 in his cross examination that the said rent receipts are forged one which suggestion RW1 denied and a suggestion was also given to him in his cross examination that he has not paid rent to the petitioner or Sri Dutt Sharma as mentioned in the said rent receipt. However, the onus to prove that the said receipts were issued by the sons of the petitioner was upon the respondent and respondent had to prove the said rent receipts as per Evidence Act and mere exhibition of the said rent receipts in evidence does not dispense with the proof of the same, as it is settled law that exhibition is merely for the purpose of identifying the document, and it is still to be proved as per the provisions of Indian Evidence Act. Now, the question which has to be asked, is how the said rent receipts could have been proved by the respondent. The respondent could have proved the said rent receipts Ex.RW1/1 to Ex.RW1/C in the following manner :
(i) By proof of signatures and hand writing of the person alleged to have been signed or written the document (S. 67 of Indian Evidence Act).
(ii)By the opinion of an expert who can compare hand writing.(S. 45 of Indian Evidence Act).
(iii)By a witness who is acquainted with the hand writing of a person by whom it is supposed to have been written and signed (S. 47 of Indian Evidence Act).
(iv)By comparison of signatures, writing or seal with others admitted or proved (S. 73 of Indian Evidence Act).
Further as per the Evidence Act, "it is a letter it must be shown who wrote it 11 or any rate who signed it, for a signatures to a document turns the whole document into a statement who sign it.
16. In this case, RW1 has not proved that signatures and the hand writing on the said rent receipt is that of AW1 or his brother or Sri Dutt Sharma. Neither any witness has been produced who was acquainted with the hand writing or signatures of the said Shiv Dutt Sharma @ Ravi Dutt Sharma and Sri Dutt Sharma and further respondent could have proved the afore rent receipts by getting opinion of an hand writing expert, who could have compared the admitted hand writing and signatures of the aforesaid Sri Dutt Sharma and Shiv Dutt Sharma @ Ravi Dutt Sharma with their admitted writings and signatures or respondent could have moved an application in the court for taking admitted signatures of the aforesaid persons in the court, which could have given an opportunity to the court to compare the same with the disputed rent receipts Ex.RW1/1 to Ex.RW1/C under Section 73 of Indian Evidence Act. Neither the said rent receipts were put to the aforesaid AW1 in his cross examination, when he appeared in the witness box to confront him that the said rent receipts bore his signatures, which could have been the best evidence to confront the alleged writing, which was not done. Accordingly, the said rent receipts have been proved as per law. Though the respondent has been able to prove that the rent for the month of February and March, 1999 was tendered and paid to the petitioner's son by way of money order and in view of the aforesaid documentary evidence Ex.RW1/ E to H, which are the 12 money order receipts and coupons proved by the respondent on the record. However, the respondent has failed to prove that he had paid the rent till January, 1999 by way of rent receipts Ex.RW1/A to Ex.RW1/C and since the respondent was under an obligation to pay the entire arrears of rent within two months of the service of the legal demand notice, and since in this case till February, 1999 as the rent for the month of March, 1999 had not accrued at the time of giving the legal demand notice dated 15.3.99. However, since the respondent has failed to prove that rent till January, 1999 was paid, and respondent was under an obligation to pay or deposit the entire arrears of rent within two months of the service of the legal demand notice to get discharged from the legal demand notice. Accordingly, respondent is held to be in default. Accordingly, the petitioner has been able to make out a case under Section 14(1)(a) of the DRC Act and consequently order under Section 15(1) of the DRC Act has to be modified.
17. The net result of the aforesaid discussion is that the petition under Section 14(1)(a) of the Act is held successful. The order under Section 15(1) of the DRC Act is accordingly modified and respondent is directed to pay or deposit the entire arrears of rent @ of Rs.385/- per month w.e.f. July, 1998 till 30.11.99, and if the respondent has already deposited the rent at the said rate for the said period, then he is directed to pay the difference of Rs.40/- per month from July, 1998 till 30.11.99 at the said rate within one month from the date of this order. In order to ascertain 13 the entitlement of the respondent viz-a-viz benefit of Section 14(2) of the DRC Act, the report of the Naib Nazir be called regarding compliance of order U/S 15(1) of DRC Act for 18.8.07, for which a separate misc. file be prepared by the Ahlmad and put up on said date. This file be consigned to record room.
Announced in open court (SANJEEV AGGARWAL)
on 7.7.07 Rent Controller : Delhi
14
Petition No. E-750/06
7.7.07
Present : None.
Vide separate detailed judgment of even date, the eviction petition under Section 14(1)(a) of the Act is held successful. The order under Section 15(1) of the DRC Act is accordingly modified and respondent is directed to pay or deposit the entire arrears of rent @ of Rs.385/- per month w.e.f. July, 1998 till 30.11.99, and if the respondent has already deposited the rent at the said rate for the said period, then he is directed to pay the difference of Rs.40/- per month from July, 1998 till 30.11.99 at the said rate within one month from the date of this order. In order to ascertain the entitlement of the respondent viz-a-viz benefit of Section 14(2) of the DRC Act, the report of the Naib Nazir be called regarding compliance of order U/S 15(1) of DRC Act for 18.8.07, for which a separate misc. file be prepared by the Ahlmad and put up on said date. This file be consigned to record room.
Announced in open court (SANJEEV AGGARWAL) on 7.7.07 Rent Controller : Delhi