Delhi District Court
Smt. Manju Seth vs Shri Baldev Kalra on 26 March, 2013
IN THE COURT OF MS. SUGANDHA AGGARWAL, ACJcumCCJcumARC, NORTH DISTRICT, ROHINI:DELHI E.No.32/2012 [U/s 14(1)(a), (c), (d) & (h) of DRC Act, 1958] Unique Case Identification No. 02404C0101332012 Smt. Manju Seth W/o Late Sh. Vinod Gopal Seth R/o 4A, Bhamashah Marg, (Pambari Road), Delhi 110009 ... Petitioner Versus Shri Baldev Kalra, Son of Shri Trilok Chand Kalra, 4A (Rear Side), Bhamashah Marg, (Pambari Road), Delhi 110009 ... Respondent Date of Institution: 16.4.2012 Date of Arguments: 22.3.2013 Date of Decision: 26.03.2013 JUDGMENT:
1. The present petition has been filed by the petitioner seeking eviction of the respondent on grounds as envisaged under Section 14(1)(a), (c), (d) & (h) of Delhi Rent Control Act, 1958.
2. The petitioner has averred in the petition that the respondent was inducted as tenant in one room measuring 18X18 ft. situated at the E.No.32/2012 Page No. 1 of 20 ground floor of premises No.4A, Bhamashah Marg, (Pambari Road), Delhi 110009 (hereinafter to be referred as the suit premises). It is further averred that the husband of the petitioner had inducted the respondent as a tenant at a monthly rent of Rs.2,500/ by way of License Deed dated 24.2.1986. It is further contended that the husband of the petitioner expired on 17.09.2007 and thereafter petitioner had inherited the suit premises.
3. Petitioner has contended that the respondent is not paying the rent regularly. Time to time several cheques have been issued by the respondent and by way of said cheques only a total sum of Rs.38,000/ has been paid by the respondent. Respondent is in arrears of rent since 1.1.2009 and rent stands paid till 31.12.2008, after adjusting the amount of Rs.38,000/ paid by the respondent. It is further contended that legal demand notice dated 31.10.2011 was served but respondent neither paid the rent nor vacated the suit premises despite service of notice within two months.
4. Further it is stated in the petition that the suit premises were let out for residential purposes, however, now the respondent has E.No.32/2012 Page No. 2 of 20 acquired a separate residential premises where the respondent has shifted with his family. It is further averred that respondent is not using the suit premises for last more than an year. It is also contended that premises are being misused by the respondent as he has changed the user of the suit premises to commercial. It is further contended that the locality in which the suit premises are situated is not a commercial locality and therefore it is detrimental to the intrest of the petitioner and is also causing public nuisance. In view of above facts, petitioner has sought eviction of the respondent from the suit premises.
5. Written statement has been filed by the respondent. Respondent has admitted that husband of the petitioner was the owner of the suit premises. Respondent has further contended that the suit premises were let out to him by the husband of the petitioner in the year 1987 for commercial purposes at a monthly rent of Rs.200/. It is further contended that after increasing the rent from time to time, the present rate of rent is Rs.1,000/ per month. It is further contended that the respondent has paid the rent till 30.9.2011 at the rate of Rs.1,000/ per month but subsequent to that the petitioner stopped accepting the E.No.32/2012 Page No. 3 of 20 rent and has sent a false and frivolous notice dated 31.10.2011 which was replied vide reply dated 16.11.2011. It is further contended that petitioner is unnecessarily harassing the respondent to evict him from the suit premises and has also got the electricity supply disconnected in the year 2003. It is further contended that petitioner has no locus standi to file the present petition as she has not shown any document of her ownership with respect to the suit premises. It is further contended that the husband of the petitioner was survived by other legal heirs also and therefore, the petitioner has no locusstandi to file the present petition. All other averments of the petition are specifically denied by the respondent.
6. Replication has been filed on behalf of the petitioner thereby denying all the averments made in the written statement and reiterating the contents of petition.
7. After completion of pleadings, parties led their evidence. Petitioner examined herself as PW1. She filed affidavit Ex.PW1/A in her examinationinchief wherein she has reiterated and reaffirmed the contents of petition on oath. She has relied upon the following E.No.32/2012 Page No. 4 of 20 documents: i. Site plan as Ex.PW1/1.
ii. Death Certificate of Sh.Vinod Gopal Seth as Ex.PW1/2. iii.License Deed dated 24.2.1986 as Ex.PW1/3.
iv.Photocopies of encashed rent cheques as Ex.PW1/4 to 1/9. v. Legal notice dated 31.10.2011 as Ex.PW1/10.
vi.Postal receipts as Ex.PW1/11 & Ex.PW1/12.
vii.Reply of respondent as Ex.PW1/13.
viii.Property tax payment receipt dated 27.5.2011 as Ex.PW1/14.
PW1 was crossexamined and discharged.
8. Petitioner has also examined her son Anuj Seth as PW2. PW2 filed his affidavit Ex.PW2/A. In his examinationinchief, PW2 has corroborated the testimony of PW1. PW2 has relied upon the documents which were already exhibited in the testimony of PW1. PW2 was crossexamined and discharged.
Thereafter, petitioner's evidence was closed.
9. Various opportunities were granted to the Respondent to lead E.No.32/2012 Page No. 5 of 20 respondent's evidence but no evidence was adduced by the respondent. Therefore, respondent's evidence was closed vide order dated 4.2.2013.
10. I have heard the arguments advanced by learned counsels for both the parties.
11. Counsel for petitioner has argued that the respondent is in arrears of rent since 1.1.2009 which is clear from AnnexureA filed with the petition. The said Annexure has not been denied by the respondent in his written statement. It is further argued that the rate of rent is also not disputed by the respondent. Further petitioner has contended that respondent has not led any evidence to prove the averments in the written statement. Admittedly, the suit premises are situated at the rear portion of the building and generally commercial premises are situated in front of property and therefore it stands proved that the suit premises were let out for residential purposes. Further the suit premises are situated in a residential locality. It is further argued that as per the terms of License Deed Ex.PW1/3, it is clear that the suit premises were let out for residential purposes. It is E.No.32/2012 Page No. 6 of 20 further argued that no suggestion has been given to PW1 and PW2 for denial with respect to eviction on the ground of misuser, nonuser and acquiring alternate property under Sections 14(1)(d) (c) and (h) of Delhi Rent Control Act. Counsel for petitioner has relied upon the following judgments :
1. Sarwan Singh Vs. State of Punjab AIR 2002 SC 3652.
2. Mahant Mela Ram Chela Mahant Inder Dass Vs. Shiromani Gurudwara Prabandhak Committee, Amritsar AIR 1992 Punjab & Haryana 252.
3. Hansraj Laltaprasad Mishra Vs. Stanley Parker Jones 2006 RLR 200 (SC)
4. Sri Ram Pasricha Vs. Jagannath AIR 1976 SC 2335.
5. Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif AIR 1968 SC 1418.
12. Per contra, counsel for respondent has argued that no document has been filed to show that the premises were let out for residential purposes. Further son of the petitioner is also the legal heir of husband of petitioner, therefore, present petition filed by petitioner E.No.32/2012 Page No. 7 of 20 alone is not maintainable. It is further argued that cheques were issued for payment of rent which have been duly encashed by the petitioner. The cheques for rent have been issued by Basu Engineering which have been accepted by the petitioner which shows that the suit premises were being used for commercial purposes. It is further contended that PW2 has admitted in his crossexamination that legal notice dated 31.10.2011 was only for payment of rent and not for termination of tenancy and therefore it cannot be said that valid legal notice has been sent as per the provisions of law. It is also argued that no rent receipt has ever been issued by the petitioner.
13. I have considered the rival contentions of both the parties and have carefully scrutinized the record.
14. In the present eviction petition, petitioner has sought eviction of the respondent on the grounds as envisaged under Section 14(1)(a),
(c), (d) and (h) of Delhi Rent Control Act, 1958. However, the respondent has challenged the ownership of the petitioner and therefore, it is imperative to first decide the relationship of landlord and tenant between the petitioner and respondent before giving any E.No.32/2012 Page No. 8 of 20 findings on the grounds of eviction.
OWNERSHIP
15. As per the petitioner, the suit premises were originally owned by her husband Shri Vinod Gopal Seth and she has inherited the same after the demise of her husband on 17.9.2007. Respondent has admitted that the suit premises were owned by the husband of the petitioner. However, he has stated that there is no document filed by the petitioner to show that after the death of her husband, she has inherited the suit premises in exclusion of other legal heirs of husband of petitioner.
16. Relationship of landlord and tenant is admitted, therefore, in view of estoppel under Section 116 of Evidence Act, the respondent cannot challenge the ownership of the petitioner. However, even if it is taken that the suit premises will be inherited jointly by all the legal heirs of deceased husband of petitioner, then also petitioner being the wife is one of the coowner of the suit premises. It is settled law that a coowner is well within his/her rights to file eviction petition against E.No.32/2012 Page No. 9 of 20 the tenant.
In Sri Ram Pasricha Vs. Jagnnath AIR 1976 SC 2335, it is observed that: "Law is well settled that until and unless partition by metes and bounds is effected a coowner is the absolute owner of each and every inch of the joint property. He owns very part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property."
In Kanta Goel Vs. B.P. Pathak AIR 1977 SC 1599 and Pal Singh Vs. Sunder Singh AIR 1989 SC 758, it has been held that a co owner is within his rights to file a suit for ejectment against a tenant.
17. Hence from the above discussion, it duly stands established that petitioner can file the present petition and she is the owner of the suit premises.
18. The petitioner has sought eviction of the respondent on the grounds as envisaged under Section 14(1)(a), (c), (d) and (h) of Delhi Rent Control Act, 1958. All the said grounds being distinct in nature are being dealt with separately as hereunder : E.No.32/2012 Page No. 10 of 20 (A) PETITION UNDER SECTION 14(1)(a) OF DELHI RENT CONTROL ACT
19. As per the contention of the petitioner, the rate of rent is Rs.2,500/ per month which has been paid upto 31.12.2008 but as per the contention of the respondent, the rate of rent is Rs.1,000/ per month which has been paid till 30.9.2011.
20. In order to prove her case, petitioner has examined herself as PW1 and her son as PW2. Both PW1 and PW2 have deposed in their examinationinchief that the rate of rent is Rs.2,500/ per month. Respondent has not adduced any evidence to prove that the rate of rent is Rs.1,000/ per month. Neither PW1 nor PW2 have been cross examined on the point of rate of rent. Therefore, there has been no evidence to rebut the rate of rent as averred by the petitioner.
21. Now as per the contention of the petitioner, the rent stands due since 1.1.2009 but as per the contention of the respondent, the rent has been paid upto 30.9.2011. Though there is no evidence on record which shows that the rent stands paid upto 30.9.2011 but even if it is taken for sake of arguments that rent has been paid till 30.9.2011 but E.No.32/2012 Page No. 11 of 20 admittedly no rent has been paid after that. Legal notice was sent on 31.10.2011 i.e. subsequent to last paid rent on 30.9.2011. It is contended by the respondent that after 30.9.2011, petitioner stopped accepting the rent. If that was the situation, respondent has not explained as to why he did not deposit the rent in the Court by filing petition under Section 27 of Delhi Rent Control Act.
22. As discussed above, petitioner has proved by the testimony of PW1 and PW2 that the rent is due since 1.1.2009 but respondent has stated in his written statement that rent has been paid till 30.9.2011. Now the onus is on the respondent to prove the same but no evidence has been adduced by the respondent in this regard. Further PW1 and PW2 have not been crossexamined on the point that rent has not been paid since 1.1.2009, therefore, the testimony of PW1 and PW2 in this regard has gone unrebutted and unchallenged.
23. Counsel for respondent has argued that legal notice dated 31.10.2011 which is Ex.PW1/10 was sent only demanding arrears of rent but was not with respect to termination of tenancy. He has further argued that even PW2 in his crossexamination has admitted that legal E.No.32/2012 Page No. 12 of 20 notice Ex.PW1/10 was for payment of rent, therefore, the said legal notice cannot be held to be valid legal notice as per the provisions of law.
24. A bare reading of the provisions of under Section 14(1)(a) of Delhi Rent Control Act will show that when rent is not paid, landlord is required to serve a notice of demand for the arrears of rent upon the tenant and it is nowhere stated that notice is required for terminating the tenancy of the tenant. Hence even if it is taken that the legal notice Ex.PW1/10 was only for demanding the arrears of rent, then also it is a valid legal notice under Section 14(1)(a) of Delhi Rent Control Act. Furthermore, a bare perusal of legal notice Ex.PW1/10 will show that in paragraph 9 of the same, it has been clearly stated that the arrears of rent shall be paid and premises shall be vacated, therefore, it cannot be said that Ex.PW1/10 was only for payment of arrears of rent and not for termination of tenancy.
25. From the above discussion, it is clear that the rate of rent is Rs.2,500/ per month which has not been paid after 30.12.2008. Even if it is taken that rent has been paid till 30.9.2011, the same was at the E.No.32/2012 Page No. 13 of 20 rate of Rs.1,000/ per month. Admittedly, the respondent is in arrears of rent since 30.9.2011 and before that also, complete rent has not been paid by the respondent. Further this is also an admitted fact that legal notice dated 31.10.2011 has been duly received by the respondent and no rent has been paid by the respondent after service of legal notice within two months. In crossexamination, PW1 has stated that she has received two money orders of Rs.5,000/ each in August, 2012. Even if it is taken that same were towards payment of rent, then also, the said money orders have not been sent within two months from the legal notice dated 31.10.2011 and also the said money orders were not towards full and final payment of entire arrears of rent. Hence petitioner has proved by preponderance of probabilities that respondent has defaulted in payment of rent and therefore, petitioner is entitled for eviction under Section 14(1)(a) of Delhi Rent Control Act.
(B) PETITION UNDER SECTION 14(1)(c) OF DELHI
RENT CONTROL ACT
26. As per the contention of the petitioner, the suit premises were let out for residential purposes but the respondent has converted E.No.32/2012 Page No. 14 of 20 the same into commercial use without the consent of petitioner and therefore petitioner has stated that the respondent shall be evicted under Section 14(1)(c) of Delhi Rent Control Act. Site plan Ex.PW1/1 has been filed by the petitioner and admittedly as shown in the site plan also, at present, the suit premises consists of one big hall.
27. Both PW1 and PW2 have been crossexamined wherein they have been specifically asked to show any document which shows that the suit premises were let out for residential purposes. Both these witnesses have relied upon the License Deed Ex.PW1/3 stating that the terms of said License Deed clearly states that the suit premises have been let out for residential purposes. A bare perusal of License Deed Ex.PW1/3 shows that there is no such specific clause which shows the purpose for which the suit premises has been let out i.e. whether it is residential or commercial. In fact, as per Clause 3 of License Deed Ex.PW1/3, the license fee has been fixed at Rs.350/ per month for the user of one hall during day time only. If there is a specific clause fixing the license fee for user of premises during day time then an inference can be drawn that the same has been let out for commercial E.No.32/2012 Page No. 15 of 20 purpose, as if a property which is let out for residential purposes then same will be used for both during day time and during night. Further, at present, admittedly the suit premises comprises of only one big hall which is not suitable for residential purposes. PW1 during her cross examination has stated that when the suit premises were let out, it comprised of one kitchen and a toilet which has been dismantled by the respondent. PW2 who is son of the petitioner has stated that he was a child when the suit premises were let out and since the time he has grown up, he has only seen one big hall comprising of the suit premises. PW2 during his crossexamination has mentioned his age as 38 years, therefore, the deposition of PW2 that since the time he has grown up, he has seen one big hall can be taken atleast 1012 years back. Petitioner has no explanation that if for more than 1012 years, the respondent has dismantled the kitchen and toilet and has been using the suit premises for commercial purposes, then why no action was taken by the petitioner till date. Further there is no other evidence on record which shows that the suit premises are being used for residential purposes.
E.No.32/2012 Page No. 16 of 20
28. During arguments, counsel for petitioner has argued that because the suit premises are situated at the rear portion of the building, therefore, the same were used for residential purposes. Though the front portion of the main building is commercially viable but it cannot be said that any portion on other side of the building cannot be used for commercial purposes at all. Hence I am of the considered opinion that petitioner has miserably failed to prove that the suit premises were let out for residential purposes and the respondent has changed its user to commercial without the written consent of the petitioner. Hence the petition under Section 14(1)(c) of Delhi Rent Control Act is hereby dismissed.
(C) PETITION UNDER SECTIONS 14(1)(d) & (h) OF
DELHI RENT CONTROL ACT
29. Both the aforesaid grounds of eviction are available to the petitioner only if the suit premises are let out for residential purposes. As discussed above, the petitioner has failed to prove that the suit premises were let out for commercial purposes, therefore, the grounds under Sections 14(1)(d) and (h) of Delhi Rent Control Act are not E.No.32/2012 Page No. 17 of 20 available to the petitioner and accordingly, no eviction order can be passed under Sections 14(1)(d) and (h) of Delhi Rent Control Act. RELIEF
30. In view of aforesaid discussion, the petition for eviction for grounds under Section 14(1)(a) of Delhi Rent Control Act, 1958 is allowed. But the petition under Sections 14(1)(c), (d) and (h) of Delhi Rent Control Act is dismissed.
31. However, as per the provisions of of Delhi Rent Control Act, 1958, in case a tenant is evicted for nonpayment of rent under Section 14(1)(a) of of Delhi Rent Control Act, 1958, he has to be given a chance for payment of arrears of rent so as to enable him to avail the benefit under Section 14(2) of Delhi Rent Control Act, 1958. As per the case of the petitioner, the rent has not been paid 1.1.2009 and legal demand notice is dated 31.10.2011 and the present petition has been filed on 16.4.2012. It is settled law that even for the purpose of Section 14(1)(a) of Delhi Rent Control Act, 1958, a landlord can claim only legally recoverable rent and rent which is barred by limitation cannot E.No.32/2012 Page No. 18 of 20 be claimed by the landlord. Reference in this regard may be made to the cases of Kamala Bakshi Vs. Khairati Lal 2000 (1) RCR (Rent) 400 (SC), Hari Shanker Saxena Vs. Sarla Devi & Ors. 1970 RCR 36, Satyendra Kumar Vs. Ramchandra Murthy 1975 RCR 320, Mankunwar Bai Vs. Sunderlal Jain 1978 (1) RCJ 249, Daulat Ram Vs. Som Nath 1981 (1) RCJ 220 (Delhi) wherein it has been observed as under : "The expression 'legally recoverable' means rent for the recovery of which there is no legal bar. One such bar may be the expiry of the period of limitation, as the expiry of the period of limitation prescribed by law bars the recovery of the said amount. Therefore, it has to be held that the words 'arrears of rent legally recoverable' means arrears of rent which are not barred by limitation."
32. Therefore, in the present case also, the respondent is liable to pay the legally recoverable arrears of rent i.e. three years immediately preceding from the date of filing of petition i.e. 16.4.2012 and arrears of rent prior to that period are barred by limitation.
33. Hence as per the provisions of Section 15(1) of DRC Act, respondent is directed to pay arrears of rent with effect from 1.5.2009 at the rate of Rs.2,500/ per month within a period of one month from E.No.32/2012 Page No. 19 of 20 today.
34. The main file be consigned to record room and Ahlmad is directed to prepare a separate miscellaneous file for the purpose of consideration of benefit under section 14(2) of DRC Act. Put up on 30.4.2013. A copy of this judgment be kept in the separate miscellaneous file.
(SUGANDHA AGGARWAL) ACJcumCCJcumARC North District : Rohini Announced in the open Court on this 26th day of March, 2013 E.No.32/2012 Page No. 20 of 20