Delhi District Court
Sh. Baldev Raj Aneja vs Sh. Nand Kishore Verma on 28 May, 2010
IN THE COURT OF SH. BALWANT RAI BANSAL:
ARC: CENTRAL:TIS HAZARI COURTS : DELHI
E398/08
Sh. Baldev Raj Aneja
S/o Sh. Nand Lal
R/o 8579/80, Rattan Nagar,
New Rohtak Road, New Delhi 110005
...... Petitioner.
Versus
Sh. Nand Kishore Verma
S/o Sh. Ram Rattan
R/o 8579/80, First Floor, Rattan Nagar,
New Rohtak Road, New Delhi 110005
...... Respondent.
Petition u/s 14(1) (a) of Delhi Rent Control Act
Date of Institution of the case : 08.08.2001
Date of Judgment reserved : 28.05.2010
Date of Judgment pronounced : 28.05.2010
E398/08 1 /33
JUDGMENT:
1. Vide this judgment I shall dispose of an eviction petition filed by the petitioner against the respondent on the ground of non payment of rent u/s 14(1) (a) of DRC Act.
2. Brief facts as stated in the petition are that the brother of the petitioner namely Sh. Sardari Lal Aneja purchased the property bearing No. 8579/80, Rattan Nagar, New Rohtak Road, New Delhi from his own funds in the name of his wife Smt. Satyawati Aneja and the said Smt. Satyawati Aneja expired intestate and thereafter the brother of the petitioner Sh. Sardari Lal Aneja became the owner of the said property who bequeathed the said property in favour of the petitioner by executing a Will dated 30.01.1992 and as such the petitioner has become the owner of the suit property. It is further stated that the respondent is a tenant on the first floor of the aforesaid property in respect of two rooms, kitchencum bathroom, one store room with limited right to use a latrine situated in the portion of the second floor and same was let out to him by Smt. Satyawati Aneja, the wife of the brother of the petitioner @ Rs. 500/ p.m. It is further stated that the respondent has become the tenant under the petitioner after Sh. Sardari Lal bequeathed the said property in favour of the petitioner and the respondent has also been paying rent and electricity charge to the petitioner. It is stated E398/08 2 /33 that the respondent has neither paid nor tendered the rent since the month of April, 2000 despite service of notice dated 17.03.2001. It is further stated that rent from the month of April, 2000 to March, 2001 is due @ Rs. 500/ and the rent from the month of April, 2001 till date is due @ Rs. 550/ p.m. as the rent has been increased by 10% by the petitioner vide notice dated 17.03.2001. It is further stated that a false and frivolous suit has been filed by one Sh. Satpal Arora against the petitioner just to grab the property of the petitioner and to extort some money. It is stated that the said suit is pending in the Hon'ble High Court of Delhi and the respondent wants to take undue advantage of the above dispute and has been harassing the petitioner and stopped making the payment of the electricity bills. It is further stated that a separate meter was being used by the respondent which was disconnected by the DVB due to non payment of electricity dues. It is further stated that petitioner filed a suit for permanent injunction against the respondent to restrain the respondent from stealing the electricity supply from the wires of the petitioner illegally for which the respondent raised a dispute with the petitioner, however, with the intervention of some of the respectable persons of the locality the mater was compromised and a written agreement dated 24.10.1998 was arrived at between the petitioner and the respondent whereby it was E398/08 3 /33 agreed that the respondent would pay an amount of Rs. 12,000/ as against the rent from October, 1996 to September, 1998. But, the respondent paid only Rs. 5000/ out of the above arrears of rent amounting to Rs. 12,000/ and remaining Rs. 7000/ still remained due which the respondent has neither paid nor tendered despite several demands and notice dated 17.03.2001. Hence, the present petition has been filed by the petitioner and it has been prayed that eviction order may be passed in favour of petitioner and against the respondent in respect of suit premises.
3. The respondent has contested the petition by filing the written statement contending that petitioner is neither the owner nor the landlord of the property No. 8579/80, Rattan Nagar, New Rohtak Road, New Delhi and and he has no locusstandi to file the present petition against the respondent. It is stated that the respondent is an old tenant in the suit property and was inducted by late Smt. Satyawati Aneja during her life time at a monthly rent of Rs. 450/ including water and electricity charges which was raised to Rs. 500/ p.m. after two years of letting of the premises to the respondent and a rent deed dated 14.01.1981 was also executed between late Smt. Satyawati Aneja and the respondent in respect of the tenanted premises. It has been denied that Sh. Sardari Lal Aneja had purchased the suit property from his own fund in the name of E398/08 4 /33 his wife Smt. Satyawati Aneja due to love and affection. It is stated that Smt. Satyawati Aneja had sufficient funds and she herself had purchased and constructed the suit property during her lifetime. It has been further denied that Smt. Satyawati Aneja died intestate and her husband Sh. Sardari Lal Aneja became the owner of the suit property. It is stated that late Smt. Satyawati Aneja had no issue and she had converted the property in dispute into a Mandir and had created a trust namely Satya Satsang Bhawan Trust by virtue of a Will executed on 26.04.1977 and by virtue of said Will Smt. Satyawati Aneja who was the sole and absolute owner of the suit property bequeathed the property to Satya Satsang Bhawan Trust and appointed her husband Sh. Sardari Lal Aneja as the Managing Trustee apart from six other trustees. It is further stated that Sh. Sardari Lal Aneja was only a Managing Trustee of the said trust and was not competent to execute the alleged Will dated 31.01.1992 in respect of the suit property in favour of the petitioner and as such the said alleged Will is a sham document and is a nullity. It is further stated that the respondent is a tenant of Satya Satsang Bhawan Trust and had been paying the rent to the Trust and is now willing and ready to pay the same to the trustees of the said trust and the petitioner has no concern with the tenanted premises of the respondent of which Satya Satsang Bhawan Trust is E398/08 5 /33 the owner/landlord. It is stated that the petitioner is a tresspasser in the trust property and has no right to file the present petition against the respondent. It is contended that the tenanted portion of the respondent has not been properly shown. It is stated that the respondent is a tenant in the portion of the first floor of the suit premises consisting of two rooms, kitchen, bath room, one store room and a latrine on the second floor of the suit premises @ Rs. 500/ p.m. It is further stated that after the death of Smt. Satyawati Aneja, the petitioner started harassing and coercing the respondent to pay rent to the petitioner and further to pressurize the respondent, he had disconnected the electricity connection of the respondent and extracted some payments from the respondent. It is further stated that under threats and coercion and by disconnecting the electricity connection of the respondent, the petitioner coerced the respondent to sign a writing dated 24.10.1998 which is not biding on the respondent. It has been denied that the respondent has neither paid nor tendered the rent since April 2000 despite notice dated 17.03.2001. It is stated that the respondent has replied the said notice and the petitioner is not entitled to recover the alleged arrears of rent from the respondent as the the petitioner has no right, title or interest in the tenanted premises. It is further stated that the petitioner is estopped from filing the present eviction E398/08 6 /33 petition in view of the status quo orders passed by the Hon'ble High Court of Delhi in the suit filed by Sh. Satpal Aroa, one of the trustee against the petitioner. The respondent has prayed for dismissal of the petition.
4. The petitioner has filed the replication to the written statement filed by the respondent in which averments made in the petition are reiterated and reaffirmed and those made in the written statement have been denied and controverted.
5. Thereafter, in support of his case the petitioner has examined his son and attorney Sh. Rajeev Aneja as PW1 who has filed his evidence by way of affidavit in which he petitioner re iterated and reaffirmed the averments made in the petition. He has placed on record the copy of power of attorney executed by his father in his favour as Ex. PW1/1, site plan as Ex. PW1/2, the written agreement dated 24.10.1998 between the petitioner and the respondent as Ex. PW1/3, copy of three separate legal notices dated 17.03.2001 as Ex. PW1/4 to Ex. PW1/6, the postal receipts as Ex. PW1/7 to Ex. PW1/9, the AD receipts as Ex. PW1/10 to Ex. PW1/12. He has also placed on record the notice dated 07.04.2001 issued by Sh. Goswami & Associates which is Ex. PW 1/13, notice dated 28.09.1998 by Sh.Prikshit Raj Girotra, Advocate is Ex. PW1/14, notice dated 15.10.1998 issued by the counsel for E398/08 7 /33 the petitioner Sh. Vinod Malhotra is Ex. PW1/15 and the registered envelope of Sh. R.N. Goswami is Ex. PW1/16 and registered envelope of Sh. Prikshit Raj Girotra, Advocate is Ex. PW1/17.
6. On the other hand, the respondent has examined himself as RW1 and filed his evidence by way of affidavit which is Ex. R 1 and in his examinationinchief he has deposed as per the averments made in the written statement.
7. The respondent has also examined Sh. Sat Pal Arora as RW2 who has filed his evidence by way of affidavit which is Ex. R2 who has deposed on the similar lines as stated by RW1.
8. Another witness examined by the respondent as RW3 is Smt. Ramanand who has filed her evidence by way of affidavit which is Ex. R3 in which she has deposed that she knew Smt. Satyawati Aneja from the time she had purchased the property at 8579/80 and on the ground floor of the house there is a Mandir. She has further deposed that Smt. Satyawati Anjea had dedicated her said property to a Trust created by her by virtue of her Will dated 26.04.1977 in the name of Satya Sat Sangh Bhawat Trust. She has further deposed that Sh. Baldev Raj Aneja is brother of the husband of late Smt. Satyawati Aneja namely Sh. Sardari Lal Aneja who was staying separately and he came to live with Sh. Sardari E398/08 8 /33 Lal Aneja for looking after him due to his old age after the death of Smt. Satyawati Aneja in 1984. The RW3 has further deposed that she also knows the respondent who is one of the old tenant in the said property and was inducted by late Smt. Satyawati Aneja in about 1981 and he was paying rent to late Smt. Satyawati Aneja and after her death in 1984 was paying rent to her husband Sh. Sardari Lal Aneja who was the Managing Trustee of the said trust as per her Will. She has further deposed that the present trustees of the said trust jointly filed a suit in the High Court for permanent and mandatory injunction. She has further deposed that the petitioner has no right, title or interest in the suit property as late Sh. Sardari Lal Aneja was only a Managing Trustee after the death of her wife and he has no right to alienate the trust property to a third person.
9. I have heard the Ld. counsel for the parties and I have perused the entire material available on record carefully.
10. Ground U/s 14(1)(a) of DRC Act The ingredients required to be proved for the ground u/s 14 (1)
(a) of DRC Act are:
(i) Existence of relationship of landlord and tenant between the parties;
(ii) Existence of arrears of rent, legally recoverable rent from the date E398/08 9 /33 of notice of demand; and
(iii) Service of notice of demand in the manner as provided in section 106 of the Transfer of Property Act and
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
11. In order to succeed in his petition, the first ingredient which is required to be proved by the petitioner is that there exist relationship of landlord and tenant between the parties.
12. The case of the petitioner is that brother of the petitioner namely Sh. Sardari Lal Aneja purchased the suit property in the name of his wife Smt. Satyawati Aneja and the said Smt. Satyawati Aneja expired intestate and thereafter the brother of the petitioner Sh. Sardari Lal Aneja became the owner of the said property who bequeathed the said property in favour of the petitioner by executing a Will dated 30.01.1992 and as such the petitioner has become the owner of the suit property and the respondent has become the tenant under him. It is further case of the petitioner that the rate of rent of the suit premises is Rs. 500/ p.m. which was enhanced by 10% vide legal notice dated 17.03.2001 and the respondent is in arrears of rent since April, 2000 and has not paid the same despite service of legal notice dated 17.03.2001. E398/08 10 /33
13. In the written statement, the respondent has disputed the relationship of landlordtenant between the parties and has contended that the petitioner has no locus standi to file the present petition as he is not the owner nor the landlord of the property in question. The respondent has further taken a plea that he is an old tenant in the suit property and was inducted by late Smt. Satyawati Aneja during her life time at a monthly rent of Rs. 450/ including water and electricity charges which was raised to Rs. 500/ p.m. after two years of letting of the premises to the respondent and a rent deed dated 14.01.1981 was also executed between late Smt. Satyawati Aneja and the respondent in respect of the tenanted premises. It is further case of the respondent that Smt. Satyawati Aneja had no issue and she had converted the property in dispute into a Mandir and had created a trust namely Satya Satsang Bhawan Trust by virtue of a Will executed on 26.04.1977 and bequeathed the property to Satya Satsang Bhawan Trust and appointed her husband Sh. Sardari lal Aneja as the Managing Trustee apart from six other trustees. It is further case of the respondent that after the death of Smt. Satyawati Aneja, the petitioner started harassing and coercing the respondent to pay rent to the petitioner and further to pressurize the respondent, he had disconnected the electricity connection of the respondent and E398/08 11 /33 extracted some payments from the respondent and under threats and coercion the petitioner coerced the respondent to sign a writing dated 24.10.1998 and same is not biding on the respondent. The respondent has also contended that the petitioner is unauthorized and illegal occupant in the property and he has no right, title or interest in the suit property and the present petition filed by him is without any cause of action.
14. In order to prove his case, the petitioner has examined his son and attorney Sh. Rajeev Aneja as PW1, whereas the respondent has examined himself as RW1 and two other witnesses namely Sh. Sat Pal Arora as RW2 and Smt. Ramanand as RW3.
15. From the aforesaid pleadings, it is revealed that the petitioner has claimed his ownership over the property in question by virtue of Will dated 30.01.1992 executed by Sh. Sardari Lal Aneja, husband of Smt. Satyawati Aneja who was the owner of the property in question. The case of the petitioner is that Smt. Satyawati Aneja died issueless leaving behind her husband Sh. Sardari Lal Aneja who bequeathed the property in favour of the petitioner. The respondent has disputed the aforesaid Will dated 30.01.1992 and has contended that the petitioner is not the owner of the property in question by virtue of the said Will. Rather Smt. Satyawati Aneja, who was the owner of the property in question, E398/08 12 /33 died issueless and she had bequeathed the property to Satya Satsang Bhawan Trust by virtue of a Will executed on 26.04.1977.
16. It is pertinent here to mention that in respect of the aforesaid two Wills i.e. dated 30.01.1992 executed by Sh. Sardari Lal Aneja by which the petitioner is claiming his ownership rights over the property in question and the Will dated 26.04.1977 executed by Smt. Satyawati Aneja by which the property in question has been allegedly bequeathed to Satya Satsang Bhawan Trust, a litigation is going on between the parties which is pending in the Hon'ble High Court of Delhi. It is also to be noted here that during the proceedings of the present case, an application u/s 1 rule 10 CPC was moved by one Sh. Sat Pal Arora claiming himself to be a sole surviving trustee of the Satya Satsang Bhawan Trust for impleadment as necessary party in the present case and the said application was dismissed by the Ld. Predecessor of this Court vide order dated 22.11.2004. The said order dated 22.11.2004 was challenged by the applicant Sh. Sat Pal Arora before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi vide order dated 21.11.2006 dismissed the revision petition filed by Sh. Sat Pal Arora and it was observed that there is a lis between the petitioner (the applicant trust) and the respondent no. 1 (the present petitioner) as to who is the owner and same may be decided in the E398/08 13 /33 suit filed by the petitioner. However, in a petition u/s 14 (1) (a) of DRC Act filed by the respondent no. 1 (petitioner herein) against the respondent no. 2 (respondent herein), it will be for the respondent no. 1 to establish his right against the respondent no. 2 as landlord to succeed in the said petition. The expression used in Section 14 (1) (a) of the said Act is "landlord" and not "owner" and thus if the respondent no. 1 (petitioner herein) is able to establish that he is landlord of respondent no. 2 (respondent herein), the respondent no. 1 would succeed.
17. As such, in the present case, the petitioner is required to prove that there exist relationship of landlord and tenant between the parties and he is not required to prove his ownership over the property in question. The contentions as to whether the petitioner is the owner of the property in question by virtue of Will dated 30.01.1992 executed by Sh. Sardari Lal Aneja in favour of the petitioner or that the said Will is forged and fabricated and in fact Satyawati Aneja, who was the owner of the property in question, died issueless and she had bequeathed the property to Satya Satsang Bhawan Trust by virtue of a Will executed on 26.04.1977, are the contentions which are not to be decided in the present case as title of the parties cannot be decided in the present proceedings. To decide the present case, this Court has to see only whether there E398/08 14 /33 exist relationship of landlord and tenant between the petitioner and the respondent or not.
18. Section 2 (e) of DRC Act provides the definition of the 'landlord' which reads as under:
"landlord" means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.
19. In view of above, now it has to be seen as to whether the petitioner has been able to prove that there exist relationship of landlordtenant between the parties or not.
20. In order to prove his case, the petitioner has examined his son and attorney Sh. Rajeev Aneja as PW1 who has deposed in his examinationinchief that the respondent was inducted as tenant by Smt. Satyawati and after her death the respondent started paying the rent to Sh. Sardari Lal Aneja and Sh. Sardari Lal Aneja bequeathed the property in favour of the petitioner. He has further deposed that after the death of Sh. Sardari Lal Aneja, the respondent started paying rent to the present petitioner after attornment in favour of the present petitioner and as such there E398/08 15 /33 exist relationship of landlord and tenant between the petitioner and the respondent. He has further deposed that in connivance with Sh. Sat Pal Arora, the respondent wants to grab the suit property and Sh. Sat Pal Arora filed a false and frivolous suit for permanent injunction against the petitioner in the Hon'ble High Court and the Hon'ble High Court directed the petitioner to maintain statusquo regarding the property bearing No. 8579/80, which is in possession of the petitioner. The PW1 has further deposed that respondent stopped making the payment of electricity bill which was being used by the respondent exclusively and same was disconnected by the DVB due to nonpayment of electricity bills and the respondent filed a suit for permanent injunction against the present petitioner. He has further deposed that petitioner also filed a suit for permanent injunction against the respondent restraining him from stealing the electricity supply from the electricity wires of the petitioner, however, with the intervention of some respectable persons of the locality mater was compromised and a written agreement dated 24.10.1998 was arrived at between the petitioner and the respondent which was written by Sh. Vinod Malhotra, whereby the respondent had agreed to pay an amount of Rs. 12,000/ as against the rent from the month of September, 1998 and Rs. 500/ was paid on 24.10.1998 after the execution of the E398/08 16 /33 agreement and remaining amount was to be paid in 9 equal installments and it was further agreed that the respondent would pay Rs. 500/ as monthly rent in advance along with above installments.
21. In the crossexamination of PW1 nothing material could come out. The PW1 admitted that the property was previously owned by Smt. Satyawati Aneja. He denied the suggestion that Smt, Satyawati Aneja left behind one Will and by virtue of such will, the suit building had been converted into a charitable public trust. He has admitted that Sh. Sat Pal Arora and two others have filed one suit against his father which is pending in the Hon'ble High Court of Delhi. He further admitted that there is a status quo order with regard to the properties bearing No. 8579 and 8580, New Rohtak Road, New Delhi in that civil case. He denied the suggestion that in view of such status quo order, present petition is not maintainable. He further denied the suggestion that the respondent had paid the rent to the petitioner under pressure. He further denied the suggestion that document Ex. PW1/3 was executed under force and coercion. He denied the suggestion that the property has been let out to the respondent by Smt. Satyawati in the capacity of her being the trustee. He further denied the suggestion that rate of rent was Rs. 450/ p.m. inclusive of water E398/08 17 /33 and electricity charges. He denied the suggestion that Sardari Lal was having lifetime interest and that too as Managing Trustee.
22. On the other hand, the respondent has examined himself as RW1 and in his examinationinchief he has deposed as per the averments made in the written statement. In the crossexamination, the RW1 has categorically stated that after the death of Sh. Sardari Lal, he paid the rent to Sh. Baldev Raj petitioner. He has further stated that Sh. Sat Pal was also charging rent from him and he got receipts both from Sh. Baldev Raj petitioner as well as from Sh. Sat Pal Arora. He further categorically stated that he was paying the rent to Sh. Baldev Raj petitioner including the electricity and water charges and before starting of this case he had paid rent and electricity charges to Sh. Baldev Raj petitioner at the instance of the counsel for the petitioner Sh. Vinod Malhotra, Advocate. He has further stated that when he paid rent and electricity charges to Sh. Baldev Raj petitioner at that time Sh. Vinod Malhotra, Advocate and his advocate Sh. Prikshit Raj Girtra was also present. The respondent has further categorically stated that he has been paying rent and electricity charges to Sh. Baldev Raj petitioner in small installments, some time Rs. 1000/and sometime in Rs. 500/
23. From the aforesaid statement of the respondent, it is revealed that the respondent admits that he has been making the E398/08 18 /33 payment of rentals to the petitioner and the petitioner was issuing the rent receipts in respect of the payment of rentals by the respondent. The respondent has also admitted that he got the rent receipts, counterfoils of which he has seen in the court today and the said counterfoils are Ex. RW1/P2 to Ex. RW1/P16. A perusal of the counterfoils Ex. RW1/P2 to Ex. RW1/P16 reveals that same has been issued by the petitioner in favour of the respondent @ Rs. 500/ p.m.. The respondent has also admitted in his crossexamination that he has been paying the rent along with the installments of the balance arrears and has been getting the receipts against the counterfoils which bears his initials at point 'A' on all the counterfoils shown to him in the Court and these counterfoils are Ex. RW1/P2 to Ex. RW1/P16.
24. As such counterfoils of rent receipts Ex. RW1/P2 to Ex. RW1/P16 are not in dispute and same bears the initials of the respondent which categorically reveals that the respondent has been paying rentals to the petitioner and this fact goes to establish that relationship of landlord and tenant between the petitioner and the respondent exist.
25. Furthermore, it is not in dispute that there was a dispute between the petitioner and the respondent regarding the disconnection of electricity supply and the respondent had filed a E398/08 19 /33 suit against the petitioner, however the matter was compromised between the parties on 24.10.1998 and a written agreement dated 24.10.1998 was arrived at between the petitioner and the respondent which is Ex. PW1/3 by which the respondent had agreed to pay the arrears of rent amounting to Rs. 12, 000/ and Rs. 500/ were paid at the time of execution of the agreement and it was agreed that remaining amount would be paid in monthly installments. The respondent who has examined himself as RW1 has admitted in his crossexamination that he had filed a suit titled as Nand Kishore Vs. Baldev Raj and others which included Sh. Sat Pal Arora, Swami Sarvagia Muni Ji and Gobind Prakash Ji and the certified copy of the plaint is Ex. RW1/P1. He has further admitted that after the compromise dated 24.10.1998 Ex. PW1/3 he did not appear in the suit bearing petition No. 741/1998 dated 03.10.1998 and the same was dismissed in default. He has further stated that the persons who are present at the time of the writing of the compromise Ex. PW1/3 also put their signatures on the compromise after he has signed the same. He has further stated that on compromise Ex. PW1/3 there is his signature at mark C and the signature of his wife Smt. Urmila at Mark D. He has further stated that he has also identified the signatures of Sh. Rajiv Aneja at mark B, Sh. Madan Lal at mark F and Sh. G.S. Bhatia at mark E. E398/08 20 /33
26. A perusal of the said compromise/agreement Ex. PW1/3 shows that the respondent has admitted that he has not paid the rent since October, 1996 which comes to Rs. 12,000/, out of which Rs. 500/ was paid and it was agreed that remaining rentals would be paid in 9 installments by way of cheque and further that he would pay future rent in advance to Sh. Baldev Raj.
27. In view of above, it is apparent that there was written agreement/compromise between the petitioner and the respondent which is Ex. PW1/3 by which the respondent had agreed to pay the rentals to the petitioner. The respondent has not disputed the execution of the agreement/compromise Ex. PW1/3, but in the crossexamination, by way of voluntarily he has stated that those persons issued him threat and it was got signed forcibly. He has further stated that he filed a complaint to the police and he has also the copy of the said complaint in his possession. But, the respondent did not produce the copy of the complaint so filed with the police and in this regard a suggestion was put to him by the Ld. Counsel for the petitioner that when the compromise Ex. PW1/3 dated 24.10.1998 was executed, all dispute came at rest and no dispute was left and that is why he did not file any compliant and there is no copy of such complaint in his possession, which was denied by the respondent. However, the respondent has not been E398/08 21 /33 able to prove his plea that the compromise Ex. PW1/3 was executed forcibly under threat or compulsion. The respondent could not produce the complaint sent to the police nor any other action has been taken by the respondent. He admitted in his cross examination that he did not file any civil suit in the Court nor FIR was got registered by him. Had the compromise Ex. PW1/3 been procured by the petitioner under compulsion or coercion, the respondent would have lodged a FIR against the petitioner in respect of the said compromise Ex. PW1/3 or would have filed a civil suit, but no such action has been taken by the respondent. As such, plea of the respondent that compromise Ex. PW1/3 was signed by him forcibly is not tenable, more so when the terms and conditions of the compromise Ex. PW1/3 were settled in the presence of his counsel Sh. Prikshit Raj Girortra as admitted by the respondent in the crossexamination.
28. Another interesting aspect of the matter is that even if it is assumed that the compromise Ex. PW1/3 was signed by the respondent under compulsion and coercion, then the respondent would have not paid the rentals as agreed by him in the said compromise Ex. PW1/3 thereafter. But, the respondent has paid the rent after the execution of the compromise Ex. PW1/3. RW1 has admitted in his crossexamination that he had paid Rs. 5,000/ E398/08 22 /33 to Sh. Baldev Raj out of the arrears of rent of Rs. 12,000/. He has further stated that he does not remember as to after how much time of the compromise Ex. PW1/3 this amount of Rs. 5000/ was paid, whether it was one year of the compromise, six moths after the compromise or 1 ½ years after the compromise, however it was paid after the compromise. The respondent has further admitted that at the time of the compromise dated 24.10.1998 previous electricity arrears were given up and it was decided that he will pay future electricity charges and future rent to Baldev Raj petitioner. He has further stated that out of Rs.12,000/ he had paid Rs. 500/ at the time of the compromise and remaining arrears of rent were to be paid in the installments along with the current future rent and he has been paying the rent and installments of arrears of rent out of Rs. 12,000/ and Rs. 5,000/ is part of that balance of Rs. 12,000/.
29. The aforesaid statement of the respondent again shows that had there been any threat or compulsion upon the respondent to sign the compromise Ex. PW1/3 he would not have been making the payment of rent in installments. But he has categorically admitted that he has been making the payment of rent in installments. As such, the respondent has miserably failed to prove that the compromise Ex. PW1/3 was obtained by threat or coercion as alleged by the respondent.
E398/08 23 /33
30. Moreover, in the present case, the respondent has also examined Smt. Ramanand as RW3 who has deposed in her evidence that she knows the respondent who is one of the old tenant in the said property and was inducted by late Smt. Satyawati Aneja in about 1981 and he was paying rent to late Smt. Satyawati Aneja and after her death in 1984 was paying rent to her husband Sh. Sardari Lal Aneja who was the Manging Trustee of the trust as per her Will. She has further deposed that the petitioner has no right, title or interest in the suit property as late Sh. Sardari Lal Aneja was only a Managing Trustee after the death of her wife and he has no right to alienate the trust property to a third person. But, in the crossexamination, RW3 has categorically stated that Sh. Nand Kishore has been getting receipt from Sh. Baldev Raj petitioner when the rent was being paid to him and the same was paid one or two occasions. She has further stated that Sh. Nand Kishore may be paying rent to Baldev Raj, the petitioner. She has further stated that she does not know whether Nand Kishore is paying rent to any of the trustee or not. The aforesaid deposition of RW3 who has been examined by none other than the respondent himself proves the case of the petitioner that the respondent has been paying rentals to the petitioner only.
31. In view of above, it has been established by the petitioner E398/08 24 /33 that the respondent was making the payment of rent to him and, therefore, there exist relationship of landlord and tenant between the parties. The contentions of the respondent that petitioner is not owner by virtue of Will and the same is forged and fabricated or as to whether late Smt. Satyawati Aneja had bequeathed the suit property to Satya Satsang Bhawan Trust by virtue of Will dated 26.04.1977 are not to be decided in the present proceedings as the same are not germane in the present proceedings in which the Court has to see only the relationship of landlord and tenant between the parties, which has been proved by the petitioner.
32. During the course of arguments, the Ld. Counsel for the respondent has vehemently argued that the petitioner has not examined himself and he has examined his son namely Sh. Rajeev Aneja as his attorney as PW1 and his testimony cannot be looked into since as per Section 85 of Indian Evidence Act, a power of attorney can be presumed to be duly executed only if is is executed before a Notary Public and is also authenticated by the latter. She has further argued that there is no proper attestation on GPA executed by the petitioner in favour of his son and same cannot be relied upon. She has relied upon the authorities titled as Electric Cons & Equ. Co. Vs. Jagjit Works, 1984 RLR 549 and M/s Birla DLW Ltd. Vs. M/s Prem Engineering Works, 77 (1999) DLT 71 E398/08 25 /33 (DB). The Ld. Counsel for the respondent has further argued that the son of the petitioner who has been examined as PW1 by the petitioner is not competent witness and his testimony cannot be looked into as he is only a power of attorney of the petitioner and cannot depose on behalf of the petitioner and in this regard she has relied upon authority titled as Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors.,(2005) SCCR 42.
33. So far the contention of the Ld. Counsel for the respondent that the PW1 is not competent witness and he cannot depose on behalf of the petitioner is concerned, the PW1 Sh. Rajeev Aneja has deposed in his evidence that he is well conversant with the facts and circumstances of the case as he is living with his father and mother in the joint family and is able to depose this affidavit and copy of power of attorney has been executed by his father in his favour and same is Ex. PW1/1. No single suggestion has been given by the Ld. Counsel for the respondent in the crossexamination of PW1 that he is not aware of the facts of the case or he is not attorney of the petitioner or the attorney has not been executed by his father. In the cross examination of PW1, there is nothing which suggests that the witness is not aware of the facts of the case and he cannot depose as facts are not in his personal knowledge. Hence, the authority E398/08 26 /33 (2005) SCCR 42 relied upon by the Ld. Counsel for the respondent is not applicable in the facts and circumstances of the present case. Apart from this, in view of the law laid down in the authority titled as Satnam Channan Vs. Darshan Singh 2006 (1) RCR 427 in which it has been held that Power of Attorney cannot depose for the principal in respect of the matters for which only the principal can have a personal knowledge in respect of which the principle is entitled to be crossexamined. But there is no judgment which lays down principle in absolute terms that an Attorney cannot depose on behalf of the principal even though the facts deposed are not facts of the personal knowledge of the principal. In the present case also, the PW1 has deposed the facts which are in his personal knowledge and there is no bar to depose the facts which are in the personal knowledge of the witness.
34. So far another contention of Ld. Counsel for the respondent that GPA executed by the petitioner in favour of PW1 is not valid as same is not properly attested is concerned, the PW1 has proved the power of attorney executed by his father in his favour as Ex. PW1/1 and same has not been objected to at the time of tendering of the said power of attorney Ex. PW1/1 in his examinationinchief. Moreover, there is no single suggestion in the crossexamination of PW1 that the attorney is not valid or E398/08 27 /33 same has not been executed by the petitioner in his favour. The Ld. Counsel for the respondent has disputed the validity of the power of attorney Ex. PW1/1 in view of section 85 of Indian Evidence Act and she has relied upon the authority 1984 RLR 549. However, the facts relied upon in the said authority are distinguishable. In the said authority the date of execution and date of attestation of power of attorney were different as the POA shows that the seal was affixed on 27.11.1973 and the attestation is on 13.12.1973 and it does not seem that it was executed before a notary and in those circumstances, it was held by the Hon'ble High Court of Delhi that, "A power of attorney can be presumed to be duly executed only if it is executed before a Notary Public and is also authenticated by the latter. In the absence of these twin requirements, POA must be proved by proper evidence."
35. Similarly, in the another authority 77 (1999) DLT 71 (DB) relied upon by the Ld. Counsel for the respondent, the case was that the power of attorney was stated to be dated 17.07.1981 while the notarial certificate was dated 18.07.1981 and in those circumstances it was held that, "Evidence Act, Section 85 Power of Attorney : Presumption of validity: Execution and Authentication by Notary not proved - Power of attorney not executed in presence of Notary - Endorsement by Notary stating E398/08 28 /33 verification of signatures, vague - Twin requirement of execution and authentication by Notary not met - Presumption of validity u/s 85 Evidence Act cannot be drawn."
36. But, in the present case, the date of execution of power of attorney Ex. PW1/1 is 15.01.2003 and on the same very date the same has been attested by Notary Public by affixing seal of attestation and, therefore, it cannot be said that power of attorney Ex. PW1/1 is not valid in view of section 85 of Evidence Act and as such the authorities relied upon by the Ld. Counsel for the respondent are not applicable in the facts of the present case.
37. Now, the case of the petitioner is that the respondent is in arrears of rent since April, 2000 and has not paid the same despite service of legal notice dated 17.03.2001 Ex. PW1/6. In the written statement, the respondent has disputed the service of legal demand notice dated 17.03.2001 Ex. PW1/6.
38. In this regard, PW1 Sh. Rajeev Aneja has stated in his evidence that the respondent had neither paid nor tendered the rent since the month of April, 2000 despite notice dated 17.03.2001 which is Ex. PW1/5 and rent from April, 2000 to March, 2001 is due @ Rs. 500/ p.m. and from the month of April, 2001 till date @ Rs. 550/ p.m. as the rent was increased by 10% vide legal notice dated 17.03.2001 which is Ex. PW1/6. No single suggestion has E398/08 29 /33 been given to PW1 in his crossexamination that the respondent was not served with the legal notice dated 17.03.2001 Ex. PW1/5 and Ex. PW1/6. Similarly, there is no whisper in the evidence of RW1 that he was not served with the legal notice dated 17.03.2001 Ex. PW1/5 and Ex. PW1/6. Moreover, the petitioner has placed on record reply dated 07.04.2001 sent by the respondent through his Counsel Sh. R.N. Goswmi to the legal notice dated 17.03.2001 Ex. PW1/6 which is Ex. PW1/13.
39. Although, in the crossexamination, the respondent has denied the suggestion that he has received notice dated 15.1.1998 which is Ex. PW1/15 and notice dated 17.03.2001 which is Ex. PW1/6, but he has admitted that Sh. R.N. Goswami, Advocate who is his counsel had issued a notice Ex. PW1/13 dated 07.04.2001 to Sh. Vinod Malhotra in reply to his notice dated 17.03.2001. As such, in view of categorical admission on the part of the respondent in his crossexamination that his counsel had sent the notice/ reply dated 07.04.2001 to the legal notice dated 17.03.2001 Ex. PW1/6 which has also been placed on record by the petitioner as Ex. PW 1/13, the plea of the respondent that he was not served with the legal notice dated 17.03.2001 Ex. PW1/6 is not tenable. Hence, it is held that the respondent was duly served with the legal notice dated 17.03.2001 Ex. PW1/6 by which the petitioner has E398/08 30 /33 demanded the arrears of rent since April, 2000.
40. So far rate of rent of the suit premises is concerned, the case of the petitioner is that the rate of rent of the suit premises is Rs. 500/ p.m. which was enhanced by 10% vide legal notice dated 17.03.2001 Ex. PW1/5 and now it is Rs. 550/ p.m. from the month of April, 2001. The PW1 has also stated in his evidence that rent from April, 2000 to March, 2001 is due @ Rs. 500/ p.m. and from the month of April, 2001 till date @ Rs. 550/ p.m. as the rent was increased by 10% vide legal notice dated 17.03.2001 Ex. PW 1/5. The respondent has also admitted in the written statement that rate of rent of the suit premises is Rs. 500/ p.m. Although, a suggestion was given to PW1 in his crossexamination that rate of rent was Rs. 450/ p.m. inclusive of electricity and water charges, but same was denied by the witness and by way of voluntarily the witness has stated that it was Rs. 500/ exclusive of electricity and water charges.
41. In view of his own case of the respondent that rate of rent of the suit premises is Rs. 500/ p.m. and further in view of the reply dated dated 07.04.2001 Ex. PW1/13 sent by the respondent's counsel to the legal notice dated 17.03.2001 Ex. PW1/6 in which also it is admitted that monthly rent of the suit premises is Rs. 500/, it is held that rate of rent of the suit premises was Rs. 500/ E398/08 31 /33 p.m. and same was increased to Rs. 550/ p.m. by 10 % vide legal notice dated 17.03.2001 Ex. PW1/5 .
42. Now, it is not in dispute that the respondent is in arrears of rent since April, 2000 and there is nothing on record to show that he has paid the arrears of rent within two months of service of legal notice dated 17.03.2001 Ex. PW1/4 to Ex. PW1/6. Hence, the petitioner has proved the grounds u/s 14 (1) (a) of DRC Act and a case of first default is made out against the respondent.
43. In the present case, the orders u/s 15 (1) of DRC Act have not been passed as there was dispute regarding the relationship of landlord and tenant between the parties. As I have held herein above that there exist relationship of landlordtenant between the parties, the respondent is directed to pay or deposit the rent @ Rs. 500/ p.m. w.e.f. 01.04.2000 to 30.04.2001 and @ Rs. 550/ p.m. w.e.f. 01.05.2001 till date within one month from today.
44. As the grounds u/s 14 (1) (a) of DRC Act is held to be successful, Naib Nazir is to file his report on 12.08.2010 vide separate miscellaneous file whether the respondent has complied the order passed today for considering the benefit of Section 14 (2) of DRC Act to the respondent being the case of first default.
45. Ahlmad is directed to prepare a separate miscellaneous file for consideration on benefit of section 14 (2) of DRC Act to the E398/08 32 /33 respondent.
Present file be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal)
on 28th May, 2010 ARC, Central, Delhi
E398/08 33 /33
E398/08
28.05.2010
Present: Counsel for the petitioner.
He has made the clarification regarding the status quo order of the Hon'ble High Court of Delhi.
Put up at 4.00 p.m. for orders.
(B.R. Bansal)
ARC(Central)/Delhi/28.05.2010
At 4.00 p.m.
Present: None.
Vide my separate judgment announced in the open court, the present petition u/s 14 (1) (a) of DRC Act is held to be successful.
As the grounds u/s 14 (1) (a) of DRC Act is held to be successful, Naib Nazir is to file his report on 12.08.2010 vide separate miscellaneous file whether the respondent has complied the order passed today for considering the benefit of Section 14 (2) of DRC Act to the respondent being the case of first default.
Ahlmad is directed to prepare a separate miscellaneous file for consideration on benefit of section 14 (2) of DRC Act to the respondent.
Present file be consigned to Record Room.
(B.R. Bansal) ARC (Central), Delhi/28.05.2010 E398/08 34 /33