Delhi District Court
Hazari Courts vs Harish Sethi Page 1 Of 9 on 6 May, 2013
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IN THE COURT OF SATISH KUMAR ARORA, ARC-1 (CENTRAL) TIS
HAZARI COURTS, DELHI.
E-172/12
06.05.2013
Shri Sanjay Arora
Vs.
Shri Harish Sethi
ORDER
By this order, I shall dispose of the issue of payment/deposit of arrears of rent /rent u/s 15 (1) of DRC Act. Briefly stated, the facts necessary for the disposal of the issue are as follows :-
2. Petitioner Sanjay Arora filed the present eviction petition u/s 14 (1) (a) of DRC Act against the respondent Harish Sethi, therein claiming that he purchased the premises bearing no. 12/19, Old Rajinder Nagar, New Delhi of which the tenanted premises as shown in red in the site plan filed therewith was let out by the erstwhile owner/landlord Smt. Padma Rani and Sh. Om Parkash to the respondent Harish Sethi at a monthly rent of Rs.
1,500/-. It was further stated that petitioner had also sent a notice u/s 6A of DRC Act for increase of rent dated 14.10.2011 upon the respondent. It was further stated that as the respondent was in arrears of rent w.e.f February, 2012 at the rate of Rs. 1650/- per month (enhanced rent), he was served with a notice of demand dated 31.05.2012. It was further stated that even the previous owner/landlord Smt. Padma Rani and Sh. Om Parkash had filed a suit for possession bearing no. 4/96 against the respondent herein and in the said case, Ld. ADJ vide his order dated 09.05.1997 directed the respondent to deposit the admitted amount at the rate of Rs. 1,500/- per E-172/12 Sanjay Arora Vs. Harish Sethi Page 1 of 9 //2// month. It was further stated that even in a suit bearing no. 578/09 titled as Sanjay Arora Vs. Harish Sethi, respondent was directed vide order dated 19.03.2010 to deposit an amount @ Rs. 1,500/- per month in the form of FDRs in the name of the court and the said order came to be modified by the Hon'ble High Court of Delhi vide its order dated 31.01.2011 whereby the respondent herein was directed to pay directly to the petitioner herein Rs. 1,500/- per month. It was further stated that pursuant thereto, the respondent had paid to the petitioner Rs. 1,500/- per month upto January, 2012. It was thus stated that the respondent may be directed u/s 15 (1) of DRC Act to pay the enhanced rate of rent @ Rs. 1650/- per month from February, 2012 onwards and till date with interest @ 15% per annum. The respondent Harish Sethi by filing his written statement admitted the rate of rent to be Rs. 1,500/- per month and the previous landlord/owner to be Smt. Padma Rani and Sh. Om Parkash of the tenanted premises, however with a rider that it is not the respondent alone who is the tenant in the tenanted premises, it is he alongwith his father and brother who are the co-tenants. It was further stated that the petitioner herein is neither the owner nor the landlord of the tenanted premises qua the respondent or his father or his brother, who are jointly the co-tenants in the tenanted premises. It was further stated that insofar as the earlier suit filed by the erstwhile owners/landlords Smt. Padma Rani and Sh. Om Parkash is concerned, the same was dismissed by the Court of Sh. Sanjeev Jain, the then Ld. Commercial Civil Judge, Delhi and as such the present eviction petition is barred on the basis of res-judicata. It was further stated that any deposit of the amount by the respondent on the order dated 31.01.2011 of the Hon'ble E-172/12 Sanjay Arora Vs. Harish Sethi Page 2 of 9 //3// High Court of Delhi was subject to the condition that the petitioner herein would furnish a surety bond to the satisfaction of the Ld. Trial Court for ensuring return of the said amount in case the court decides the matter against him. It was thus stated that in the absence of any relationship of landlord-tenant between the parties, neither an order u/s 15 (1) of DRC Act could be passed nor the eviction petition as filed by the petitioner is maintainable.
3. Ld. Counsel for the petitioner and Ld. Counsel for the respondent were heard and the file including the written submissions was carefully perused.
4. Ld. Counsel for the petitioner in support of his contentions relied upon the following citations :- (i)Satya Malhotra Vs. Mohinder Singh Arora , 1999 (2) RCR 645. (ii) Krishna Prakash Vs. Dilip Harel Mitra Chenoy, 2001 (2) RCR 364. (iii) Pritam Dass Vs. Kumari Jiya Rani, 1981 (2) AIRCJ 495.(iv) Ram Parkash Vs. D.N.Srivastav, 2006 RLR 58. (v) AVGP Chettiar & Sons Vs. T.Palaniswamy Gounder, 2002 (1) RCR SC 575. (vi) State of Andhra Pradesh and others Vs. D.Raghukul Pershad (Dead) by LRs and others (2012) 8 Supreme Court Cases 584. (vii) R.G.Hiremath and another Vs. T.Krishnappa, AIR 1978 Karnataka 13. (viii) Haji Iqbal Shariff Vs. Smt. C.Manjula, 2007 (1) RCR 331. (ix) Rameshwar Lal Sharma Vs. Sardar Amrik Singh, 1974 RCR 269. (x) Lata Chauhan Vs. L.S.Bisht, 2010 (117) DRJ 715 Delhi. (xi) Smt. Ramti Devi Vs. Union of India, JT 1995 (1) S.C. 223.
(xii) O.P.Soni and others Vs. Om Kumar and another, 60 (1995) DLT 30.
(xiii) Satya Narayan Garg Vs. Kanhaiya Lal Pyare Lal Gotewala & Anr., AIR 2008 (NOC) 492 (Raj). (xiv) Gandabhai Ranchhodji Gandhi Vs. Noshir Ka E-172/12 Sanjay Arora Vs. Harish Sethi Page 3 of 9 //4// Vasji Sabowala & ors., AIR 1994 Gujarat 18. (xv) Kanwar Singh Saini Vs. High Court of Delhi, (2012) 4 Supreme Court Cases 307. (xvi) Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) DLT 383. (xvii) Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jajoo, (2009) SCR 794.
5. Ld. Counsel for the respondent relied upon the following citations
(i) Subhash Chandra Vs. Mohammad Sharif and others, AIR 1990 SC 636.
(ii) Kailash Kumar and another Vs. Banarsi Das Gupta, AIR 1961 J & K 34.
6. Before I take up the respective contentions, I deem it fit to make a mention of the judgment of Hon'ble High Court of Delhi in Ram Narain Khanna Vs. S. Ishar Singh, 1977 RLR 549. In the said case, Hon'ble High Court while examining the scope and ambit of Sec. 15 (1) of DRC Act observed that "section 15 (1) contemplates an order directing the tenant, not only to pay the arrears of rent within one month of the date of the order for an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant, including the rent for the period subsequent thereto up to the end of the month previous to that in which the payment or deposit is made, but also to continue to pay or deposit future rent month by month, by the 15th of each succeeding month at the same rate till the trial or the proceedings continue. The very fact that order under section 15 (1) contemplates a direction for payment of rent month by month in future as well shows that the order under section 15 (1) is not a final order in the sense that the trial terminates with the passing of the order and the deposit in accordance therewith. It is merely an order preliminary to the trial of the case and is made only where the rent has in fact not been paid".
E-172/12 Sanjay Arora Vs. Harish Sethi Page 4 of 9//5// It was further observed that "the very fact that it is a preliminary order also lends colour to the nature of hearing contemplated by section 15 (1). For the purpose of an interim order, it is not necessary that there should be a full trial. It does not mean that there should not be a proper inquiry".
Hon'ble High Court also referred to the judgment of Hon'ble Supreme Court in V.N.Vasudeva Vs. Kirori Mal Luhariwala (1964) 6 SCR 181 wherein it was observed that "having seen the nature of the order contemplated by section 15 (1) as being in the nature of an order preliminary to the trial of the eviction petition, the nature of inquiry contemplated by the expression "after giving the parties an opportunity of being heard" also becomes clear. For purposes of an interim order, it is not necessary that there should have been full trial. Once the conclusion is reached that an order under section 15 (1) is in the nature of an order preliminary to the trial of the case it becomes clear as to the nature and the scope of the expression "after giving the parties an opportunity of being heard". The finding as to the arrears of rent under sub-section (1) or sub-section (3) is final only for purposes of these provisions and not final for the purpose of the trial. The aforesaid expression in the context in which it is used means that both the parties should know that the Controller is making an inquiry for purposes of section 15 (1) and in that connection, apart from the pleadings of the parties, it is up to the parties to lead whatever evidence they consider necessary for the decision of the limited question involved in the inquiry. The expression does not contemplate that the Controller should issue an invitation to the parties to lead oral or documentary evidence. It is for the parties, for purposes of the inquiry under section 15 (1), to either file documents to show arrears or payment thereof or file affidavits in that behalf. Normally, such documents and affidavits by the parties would be E-172/12 Sanjay Arora Vs. Harish Sethi Page 5 of 9 //6// sufficient for purposes of the inquiry under section 15 (1) but if the question about arrears or their payment cannot be satisfactorily determined for purposes of section 15 (1) and the party concerned makes out a case for examination of oral evidence, the Controller in his judicial discretion will grant that opportunity or decline to grant it, depending on the circumstances and the facts of each case. The same principles will apply for determination of questions involved under sub-sections (2), (3) and (4) of section 15".
After referring to the judgment of Hon'ble Supreme Court as afore said, Hon'ble High Court further observed that "since the order under section 15 (1) is in the nature of an order preliminary to the trial and the determination of arrears of rent is final only for purposes of section 15 (1) of the Act and is not final for purposes of the trial, the order of the Controller under section 15 (1) will be on "prima facie" view of the matter and cannot be final for purposes of the trial. The order under section 15 (1) has to be passed before the defense of the tenant on the merits of the case is finally decided. The very object of section 15 (1) is that pending the decision of the petition for eviction, the Controller must see that the tenant continues to pay rent to the landlord at the rate at which it was last paid."
It was further observed that "the use of the expression "Prima facie" is coined by the courts to distinguish a finding on a question at the interlocutory stage as opposed to a finding given at the final stage of the trial. At the same time, for purposes of section 15 (1), the determination of relationship and/or arrears of rent have to be final only for the limited purpose of section 15 (1), and in that sense the finding is prima facie as opposed to the determination of the question at the end of the trial".
7. Applying the principles as above stated to the facts of the present E-172/12 Sanjay Arora Vs. Harish Sethi Page 6 of 9 //7// case, it is to be seen that the respondent Harish Sethi admitted himself to be a tenant in the tenanted premises under the landlordship/ownership of Smt. Padma Rani and Sh. Om Parkash. What was further stated was that it is not the respondent alone who is the tenant in the tenanted premises, but it is he who alongwith his father and brother are the co-tenants in the tenanted premises. It is an admitted fact that there is no document available with the respondent to show or establish that the tenancy was of himself, his father and brother as co-tenants. It is also an admitted fact that the erstwhile owner/landlords as aforesaid filed a civil suit for possession against the respondent herein, therein claiming him to be their tenant at a monthly rent of Rs. 1,500/-. It is also an admitted fact that the said Civil Suit was subsequently dismissed as no evidence was led by the erstwhile owners/landlords to prove the issues framed in the said Civil Suit. It is also an admitted fact that one of the issues therein was with respect to the said civil suit being bad for non joinder of necessary parties and the onus to prove the said issue was upon the respondent herein (who was the defendant therein). It is also an admitted fact that as the respondent herein/defendant therein did not led any evidence, the issue was decided against him, notwithstanding the fact that the suit as a whole was also dismissed. It has nowhere been stated by the respondent herein as to if not the petitioner, then who is the landlord to whom the respondent alongwith his brother and father has tendered/paid the rent. As rightly relied upon by the Ld. Counsel for the petitioner, Hon'ble High Court of Delhi in Pritam Dass Vs. Kumari Jiya Rani (supra) held that "but the real question is whether there is any justification for holding that order u/s 15 (1) of the Act can only E-172/12 Sanjay Arora Vs. Harish Sethi Page 7 of 9 //8// be passed by first deciding finally the question, whether there is a relationship of landlord and tenant, if the alleged tenant happens to deny such a relationship. We can find none. If this view was accepted, one of the equally strong objects of section 15 (1) of the Act, namely to compel the tenant to pay the rent during the pendency of the proceedings for eviction application on the pain of having his defense struck off would be defeated in most of the cases because such a dispute may well be raised quite frequently.
8. Going further, this dispute as to whether the respondent alongwith his brother and father are the co-tenants is dependent upon the evidence to be led by both the parties in support of their respective case. For the purposes of section 15 (1) of DRC Act, it is sufficient that the respondent is in possession of the tenanted premises in the capacity of a tenant and that too under the landlordship of the erstwhile owners Smt. Padma Rani and Sh. Om Parkash through whom the petitioner is claiming ownership of the tenanted premises. Whether or not, the petitioner has a clear title, it is not to be adjudicated upon in the present proceedings and as is apparent from the pleadings, other civil cases are pending disposal. Furthermore, the respondent would get every opportunity during trial to establish on record that no title passed into the hands of the petitioner herein from the erstwhile landlords/owners Smt. Padma Rani and Sh. Om Parkash. For the purposes of section 15 (1) of DRC Act, prima facie there is sufficient material regarding the relationship of landlord-tenant between the parties.
9. Insofar as the rate of rent is concerned, it is again an admitted fact that it was at the rate of Rs. 1,500/- per month and the petitioner having E-172/12 Sanjay Arora Vs. Harish Sethi Page 8 of 9 //9// stepped into the shoes of the erstwhile owner/landlords sent a notice dated 14.10.2011 for the enhancement of the rent u/s 6A of DRC Act to Rs. 1,650/- per month. For the purposes of section 15 (1) of DRC Act, the petitioner having filed on record copy of the said legal notice alongwith its postal receipts, there is sufficient prima facie material available on record that the respondent did not pay or tender rent at the said rate of Rs. 1,650/- per month to the petitioner w.e.f February, 2012. Whether or not the petitioner was competent to send the said notice and whether or not the said notice was served upon the respondent is again a matter of trial.
10.. In view of the afore said, I hereby pass an order u/s 15 (1) of DRC Act thereby directing the respondent to pay or deposit the arrears of rent @ Rs. 1,650/- per month w.e.f February, 2012 till date with interest @ 15% per annum within 30 days from today. Respondent is further directed to keep on paying/depositing the future rent @ Rs. 1,650/- per month by 15th of each succeeding English calender month. Ordered accordingly.
Nothing said herein shall be taken as an expression of opinion on the merits of the case.
(Announced in the open court
on 06.05.13) (Satish Kumar Arora)
ARC-1/Central/THC/Delhi
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