Delhi District Court
Sadruddin vs Mohd. Hanif on 20 April, 2018
IN THE COURT OF SH. ATUL KRISHNA AGRAWAL:
ADDITIONAL RENT CONTROLLER (SOUTH), SAKET
COURTS: NEW DELHI
Eviction Petition No. 6189/16
IN THE MATTER OF
Sadruddin
S/o Sh. Fakhruddin
R/o T115, Basti Hazrat
Nizamuddin
New Delhi. ... Petitioner
Versus
1. Mohd. Hanif
Deceased through legal heirs
i) Noor Jahan, W/o Late Sh. Mohd. Hanif
ii) Shamar Jahan, D/o Late Sh. Mohd. Hanif
iii) Roshan Jahan, D/o Late Sh. Mohd. Hanif
iv) Nafis Ahmed, S/o Late Sh. Mohd. Hanif
v) Kaisar Jahan, D/o Late Sh. Mohd. Hanif
vi) Anees Ahmed, S/o Late Sh. Mohd. Hanif
Vii) Shabnam Jahan, D/o Late Sh. Mohd. Hanif
All R/o Mohalla Banduk Chand Qureshi, Dhampur, District
Bijnaur, UP.
RC ARC No. 6189/16
Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 1 of 21
2) Raees Ahmed
S/o Late Sh. Mohd. Hanif
R/o 181, Basti Hazrat Nizamuddin,
New Delhi ... Respondent
Date of filing : 19.12.2009
Date of Reserving order : 17.03.2018
Date of pronouncing judgment: 20.04.2018
Petition under Section 14 (1) (a), (b) and (j) of the Delhi Rent
Control Act, 1958
JUDGMENT
1. This is an eviction petition filed by the petitioner under Section 14(1) (a), (b) and (j) of DRC Act, on the grounds of non payment of rent by respondent no.1 subletting by him as well as making alteration in the suit property without permission and consent of the petitioner.
2. In brief, facts are that the erstwhile owner/landlord, Sh. Safdar Ali Nizami had let out the suit property i.e. 181, Basti Hazrat Nizamuddin, New Delhi to respondent no. 1 for residential purposes. After the death of said Safdar Ali Nizami, his son Syed Kamaal Nizami became the owner of the suit property. Said Kamaal Nizami thereafter sold the suit property to petitioner herein on 17.02.1997 and executed various documents such as Agreement to sell, GPA, Will and receipt. Thereafter the petitioner became the absolute owner of the suit property.
RC ARC No. 6189/16Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 2 of 21
3. Petitioner further states that at the time he purchased the suit property, one Zamir was in possession of the said property and possession of the suit property was handed over to him (the petitioner) after obtaining it from said Zamir and at that time, both the respondents were residing at their native village i.e. Dhampur, District Bijnaur, UP. When they came to know about the same, respondent no. 1 came to Delhi and made a false complaint against petitioner and got an FIR bearing no.93/97 registered against petitioner at PS Hazrat Nizamuddin, on 19.02.1997 for offences under Section 448/380 IPC.
4. Petitioner further states that during the pendency of above criminal case, an oral compromise took place between him and respondent no. 1, whereby respondent no.1 admitted his ownership and attorned him (petitioner) as his landlord and respondent no.1 also undertook to make payment of rent to petitioner at the settled rent of Rs.3,000/ per month. First payment of rent was made on 10.06.1997 for an amount of Rs. 3000/ in cash for the month of June 1997. Thereafter, respondent no.1 continued to pay rent continuously till 10.01.1998 but subsequently, he failed to make payment of any further rent till date, despite repeated requests and demands made by petitioner.
5. Petitioner further alleges that respondent no.1 is residing at his native village at Dhampur, District Bijnaur UP and he has sub let, assigned or parted with possession of the suit property to his son i.e. respondent no.2, since February 2006, without his permission and consent. Further respondent no. 1 had also raised walls on the roof of the suit property without permission and consent of petitioner, with intention to damage the suit RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 3 of 21 property. Accordingly, petitioner terminated the tenancy of respondent no.1 vide a legal notice dated 31.08.2009. The said notice was duly served upon respondent but despite the same, respondents failed to vacate the suit property. Hence this eviction petition is filed.
6. Written Statement was filed by respondents to the petition stating that the suit property falls within the notified area falling under Slum Areas covered under the Slum Areas (Improvement & Clearance Act, 1956 and the mandatory permission before filing the present eviction petition, has not been obtained by petitioner. Further petitioner was neither the owner nor the landlord of the suit property, therefore, he does not have any locus standi to file or maintain the present petition. There exists no relationship of landlord and tenant between the parties.
7. Further the Site plan filed with the petition does not correctly depict the actual status of the suit property. The petition was also bad for misjoinder and nonjoinder of necessary and proper parties. Respondent no. 2 is the son of respondent no.1 and thus residing with respondent no. 1 in the suit property as a family member, dependent on him, right since the inception of tenancy.
8. Further states that the suit property was taken on rent by respondent no. 1 almost 50 years ago, from late Safdar Ali Nizami, who himself was merely landlord of the suit property. The suit property were taken on a monthly rent of Rs. 20/ per month. Further the suit property did not have electricity or water amenity available therein, at the relevant time. No rent agreement was executed between the said parties and the terms of tenancy were settled orally. Late Safdar Ali Nizami expired about 23 years ago and his son, Syed Hilaal Nizami, a RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 4 of 21 practicing advocate, became landlord qua the suit property and started collecting rent from respondent no.1 against proper receipt. Further states that Syed Hilal Nizami had lastly collected rent from respondent no. 1 for December, 1995. The water connection was obtained by respondent on the basis of "No Objection Letter" issued by S.H. Nizami.
9. Further state that respondents being muslim by religion, had gone to celebrate the festival of IdulFitr while leaving the suit property locked on 08.01.1997. Upon return to Delhi on 16.02.1997 at about 9:00 pm, the respondents were shocked to find that their lock over the suit property was illegally removed at the instance of said landlord in collusion with the petitioner herein, with the help of some strangers including Haji Yunus, etc. and they illegally trespassed into the suit property of respondents. The local police of PS Hazrat Nizamuddin registered a formal FIR bearing no. 93/97 under Section 448/380 IPC against the petitioner herein alone and he was arrested by police at that time and only then the possession of suit property was restored to the respondents.
10. Further state that since they (respondents) were under constant threats of forcible ejectment from the suit property, respondent no. 1 had filed a suit for permanent injunction against the said Syed Hilal Nizami, which was finally decreed in favour of respondent no. 1 on 31.05.2004. As per respondent no.1, he had sent/tendered rent of suit property to the said Syed Hilal Nizami through money order but the same was not accepted by addressee and even subsequently, the same was refused upon which it was deposited in the court.
11. Further state that the landlord had never carried out any repairs RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 5 of 21 or renovation in the suit property despite the fact that it was badly required to make the suit property habitable. Under such circumstances, respondent no. 1 was constrained to send legal notices dated 16.10.2001 and 25.07.2002 but no one from the side of landlord had responded, thus forcing the respondents to carry out the necessary repairs themselves so as to make the suit property habitable but without tampering with the existing status of the suit property.
12. Further state that during the course of trial in FIR no. 93/97, petitioner approached them (respondents) with request to compromise the matter while apologizing for his conduct and formally apologized in court and upon request of both the parties, the matter was settled between them. In the said compromise, petitioner paid a sum of Rs. 500/ towards compensation for offence under Section 448 IPC which was compounded and petitioner was convicted under Section 380 IPC but was released on furnishing bond for good conduct for one year.
13. Further state that in the Civil suit filed by him (respondent no.1), petitioner in para 3 of the preliminary objections had specifically accepted that he had purchased the suit property from Syed Kamal Nizami claiming that he had become owner of the suit property by virtue of a family settlement, being son of Late Safdar Ali Nizami and took peaceful possession from one Amir. However the petitioner never led any evidence in the said suit to this effect and the documents filed in that proceedings were also of no consequence and did not relate to the ownership of suit property either in the name of Safdar Ali Nizami or any of his son. As such, petitioner was a complete RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 6 of 21 stranger as far as respondents were concerned.
14. Further state that after a long time, petitioner had sent a notice dated 01.08.2009 to them, once again making false and frivolous claims and asking them to pay rent of the suit property @ Rs. 3000/ per month alongwith the alleged arrears besides making other frivolous and false allegations.
15. As regards allegations of subtenancy, it its stated that Sh.
Rahees (respondent no.2) was occupying the suit property by virtue of his lawful right being son of respondent no.1. Also contend that the petitioner had based his claim in respect of the suit property declaring the same to be a shed and boundary walls, which would not constitute "suit property" as defined in Delhi Rent Control Act. All other allegations are denied and prayer is made for dismissal of the petition.
16. Replication was filed by petitioner wherein he has reiterated the averments made in the plaint and all the contentions of WS were denied.
17. In petitioner's evidence, petitioner himself stepped into the witness box and tendered his Affidavit in evidence as Ex. PW 1/A. Reliance was placed on title documents of suit property as Mark A (colly), site plan as Ex. PW1/B, certified copy of complaint dated 19.02.1997 along with rukka as Ex. PW1/C (colly), copy of order dated 13.08.2008 in FIR no. 93/97 as Ex. PW1/D, Copy of legal notice dated 01.08.2009 along with postal receipt, UPC and registered cards as Ex. PW1/E, legal notice dated 16.11.2009 as Ex. PW1/E1 and petition along with annexure A and Affidavit as Ex. CW1/B (colly). The said witness was duly cross examined by counsel for respondent. Thereafter PE was closed.
RC ARC No. 6189/16Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 7 of 21
18. In Respondent's evidence, Respondent no.2 Raees Ahmed was examined as RW1 and he tendered his evidence Affidavit as RW1/A. Other documents are GPA Ex. RW1/1, original electricity bill Ex.RW1/2, original water bill Ex. RW1/3, site plan Ex. RW1/4, Copy of legal notice dated 16.10. 2001 along with original postal receipt and AD Card Ex. PW1/5 (colly), Office copy of legal notice dated 25.07.2002 along with original postal receipt and AD card Ex. RW1/6 (colly), Copy of charge sheet in FIR no.93/97 Ex. RW1/7, Certified copy of complaint dated 19.02.1997 along with rukka as Ex. RW1/8 (colly), the notice dated 01.08.2009 as Ex. PW1/E (colly)/Ex. RW1/9 (colly), the reply dated 18.08.2009 of legal notice dated 01.08.2009 along with postal receipts and UPC receipts are collectively exhibited as Ex. RW1/10, The legal notice dated 16.11.2009 sent by petitioner as Ex. RW1/11, reply of legal notice as Ex. RW1/12, certified copy of complete case file of CS no. 66/97 as Ex. RW1/13 and GPA as Ex. RW1/14. The said witness was also duly cross examined by petitioner's counsel and RE was also closed. Final arguments were addressed on behalf of both sides.
19. I have heard the arguments from both the sides and perused the record carefully.
20. The eviction petition has been filed by petitioner on three grounds. Firstly, on account of nonpayment of rent under Section 14 (1) (a) of DRC Act, secondly, on the ground of sub letting under Section 14 (1) (b) of DRC Act by respondent no. 1 to respondent no. 2 and thirdly, on account of unauthorized alteration made in the suit property by respondent without permission of petitioner under Section 14 (1) (j) of DRC Act. I RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 8 of 21 will deal with all the grounds separately.
Ground under Section 14(1)(a) of DRC Act At the outset, it is pertinent to mention that no evidence is placed on record by respondent that the suit property falls under Slum Area as per Slum Area (Improvement and Clearance) Act. So the same is not proved.
21. As far as ground under Section 14 (1) (a) of DRC Act is concerned, in order to succeed, the petitioner is required to prove the existence of landlord and tenant relationship between the parties, the fact that respondent was in arrears of legally recoverable rent and thirdly, nonpayment of rent within two months despite service of notice of demand of arrears of rent.
22. As far as the first requirement of existence of landlord and tenant relationship is concerned, the same is vehemently denied by respondent who states that petitioner is neither the landlord nor the owner of suit property. On the other hand, as per petitioner, he had purchased the suit property from one Syed Kamal Nizami, who is one of the son of Late Safdar Ali Nizami, the original owner/landlord of the suit property. Further as per the petitioner, he had been attorned as landlord by respondent no.1 after an oral compromise took place between him and respondent no.1 in the criminal case registered vide FIR No. 93/97 PS Hazrat Nizamuddin Ex. RW1/13.
23. Perusal of evidence on record shows that there is no rent agreement executed between the parties nor any rent receipt had ever been issued by petitioner in favour of respondent pursuant to alleged compromise arrived in the above criminal case. Hence, there is no documentary evidence regarding the alleged RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 9 of 21 tenancy created in favour of respondent no.1 by petitioner.
24. However pleadings and evidence on record shows that it is not in dispute that Late Safdar Ali Nizami was the original owner/landlord of the suit property since respondent admits that he was inducted as tenant by Safdar Ali Nizami himself. Though he denies the fact that the Safdar Ali Nizami was the owner however this has merely remained an oral contention on the part of respondent but without any supporting proof. Moreover, the law is also well settled that it is not open to a tenant to challenge the title of his landlord during the subsistence of tenancy, in view of Section 116 of Indian Evidence Act. As petitioner claims to have purchased the suit property from the son of Safdar Ali Nizami, the question before the court is whether petitioner had become the landlord/owner of suit property having purchased it from Syed Kamal Nizami vide property documents Mark 1/A (Colly.) or not ?
25. At the outset, it is pertinent to note that this court being that of a rent controller, cannot decide the title of petitioner. Jurisdiction of rent controller becomes vested only when there is a landlord tenant relationship between the parties. It is also settled law that in order to succeed in an eviction petition, the landlord/petitioner is merely required to show that he is something more than the tenant. Any alleged defect in the title of landlord, cannot be taken advantage of by the tenant if it is proved that subsequent purchaser had acquired all the right, title and interest of the previous landlord after purchasing the property. Under such circumstances, the subsequent purchaser merely steps into the shoes of previous landlord and has the same rights against the tenant which the previous landlord was RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 10 of 21 enjoying. Further evenif the tenant refuses to admit the subsequent owner as his landlord on ground of some alleged defect in the title of subsequent purchaser, the same is an immaterial defence.
26.In fact, in the judgment in the case of Madan Mohan Vohra Vs Sharwan Kumar, 1990 (42) DLT 271, it was held that petition under section 14 (1) (a) of DRC Act can be filed by a landlord though he may not be the owner of the property. It has been further held in Maya Devi Vs Rafeeqa Khatoon, 2015 (2) RLR 598, that in an eviction petition, landlord/landlady is not required to prove absolute ownership and it is sufficient even if the landlord is able to establish the he/she has a better claim than the tenant. Reliance can also be placed on the judgment of Hon'ble High Court of Delhi in case titled as Madhusudan Kakkar Vs. Jawahar Lal 2017 (238) DLT 515, wherein it was held that the landlord was not expected to prove absolute ownership of the tenanted premises but only a title better than that of tenant. This judgment is also applicable to the facts of the case since, respondent is admittedly only a tenant in the property and his claim cannot be superior to that of landlord.
27. Further in case titled as Vinod Kumar Vs. Manmohan Kumar Verma 148 (2008) DLT 580, the Hon'ble High Court of Delhi similarly held that in an eviction petition under Section 14 (1)
(e) for bonafide requirement, though the ownership was required to be established by landlord, the same was not an absolute ownership of tenanted premises. The idea of ownership was one of better rights to be in possession and to obtain it.
28.Further it is settled proposition of law that when a property which is already let out, is purchased by the buyer, he steps into RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 11 of 21 the shoes of the seller and a landlordtenant relationship is automatically created between buyer and tenant. In a very recent judgment in case titled as Dr. Ambica Prasad Vs Md. Alam and another in Civil Appeal No.3391 of 2015 (arising out of S.L.P.(C) NO.19487 of 2014) which was decided on date 08.08.2015 by Hon'ble Supreme Court, it was held that :
"From perusal of the aforesaid Section (section 109 of the Transfer of Property Act), it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment."
29.Reference can also be made to the judgment titled as Indian Institute of Finance vs Shakti Tower (P) Ltd. and Anr. RFA No.99/2005 decided on 10.10.2006 by Hon'ble Delhi High Court.In Indian Institute Of Finance vs Shakti Tower (P) Ltd. and Anr. RFA No.99/2005 decided on 10.10.2006, a similar question was before the Hon'ble Delhi High Court wherein the erstwhile landlord had transferred all his rights in the suit property to the purchaser through an Agreement to Sell, etc. and the tenant denied the title and locus standi of the subsequent purchaser on the grounds that the purchaser did not had any RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 12 of 21 valid title deed in his favour. The Hon'ble High Court held as under: "21. It follows from the above that even when Sh. Ashok Manchanda did not have absolute title to the property, he had the right to create a lease and induct a tenant. That being so, the question is whether the rights held by Sh. Manchanda as the holder of an agreement to sell in possession of the property agreed to be sold could be transferred to another individual or legal entity without the execution of a registered instrument of transfer. Our answer is in the affirmative. If the Lesser could create a lease without being the absolute owner of the leased property, then transfer of the leased property within the meaning of Section 109 of the Transfer of Properties Act would simply mean transfer of the right held by the Lesser which need not necessarily be transfer of absolute ownership in the property. If the Lesser did not have ownership rights in the property, the law cannot insist on the transfer of such rights by him as a condition precedent for the application of section 109 of the Act. A transferor Lesser cannot in any case confer a title better than the one held by him. If the transferor does not have absolute ownership vested in him, there is no question of his conferring such ownership by way of transfer for the application of section 109 of the Act. Transfer of the leased property referred to in section 109 can therefore only mean transfer of the rights which the Lesser transferor held either in full or in part and no more. The transferor Lesser in the instant case simply held an agreement to sell with possession of the leased property handed over in part performance of the agreement. The agreement did not in itself create any right in the immovable property having regard to the settled legal position flowing not only from Section 54 of the Transfer of Property Act but also from the pronouncements of the Supreme Court on the subject. That being so, the Lesser transferor could transfer his rights by a simple agreement as RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 13 of 21 was done in the instant case accompanied by symbolic transfer of possession of the property in question. No registered instrument was necessary in such a case."
30. In the case herein, petitioner claimed that he had purchased the suit property from Syed Kamal Nizami, who had allegedly become the exclusive owner of suit property, by way of a family settlement between Syed Kamal Nizami and his brother Syed Hilal Nizami, upon the death of their father, Late Sh. Safdar Ali Nizami. It is correct that there is no document filed by petitioner to prove the alleged family settlement between Syed Kamaal Nizami and Syed Hilal Nizami. It is also correct that previous chain of documents have not been filed by petitioner to show that Syed Kamaal Nizami had any rightful authority to execute the alleged title documents in his favour. Moreover, the alleged title documents Mark A in favour of petitioner, have also not been proved as per law. Infact perusal of cross examination of PW1 i.e. petitioner herein, shows that he has also admitted that he had not taken any documents of ownership of either Syed Kamaal Nizami or Syed Hilal Nizami nor did he see any documents of ownership of Safdar Ali Nizami. Even though the above defects remain in the case of petitioner, however still the same is of no help to the respondents in view of the judgments cited above.
31. As per Section 58 of Indian Evidence Act, a fact which stands admitted, need not be proved. In the case herein, respondent has himself filed certified copy of pleadings and proceedings in another civil suit No. 66/97 filed by him against petitioner and Syed Hilal Nizami, seeking permanent injunction. The entire RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 14 of 21 record of the said suit is Ex. RW1/13 (colly). A perusal of the said compilation of documents Ex. RW1/13 shows that there is a police complaint filed by respondent herein against the petitioner herein, before crime branch dated 19.02.1997, wherein respondent has himself that he was told by petitioner that he (petitioner) had purchased the suit property from landlord one Hilal Nizami for Rs. 5.2 lacs. Perusal of this complaint further shows that in page 4 at the bottom, respondent herein has referred to petitioner herein as the present landlord, namely Saddu Qureshi (another name of petitioner herein).
32. It can be further seen that respondent admits the facts that he was paying rent to Syed Hilal Nizami after the death of Safdar Ali Nizami so Syed Hilal Nizami was his landlord but later on he stopped accepting rent. The said Syed Hilal Nizami was also defendant no. 1 in the aforesaid suit for injunction bearing CS no. 66/97. In the said injunction suit, Syed Hilal Nizami filed his WS wherein he categorically stated that in view of family settlement, the suit property had come into the share of Syed Kamaal Nizami, his elder brother and the said Syed Kamaal Nizami had sold the suit property to defendant no. 2 i.e. Suddu Qureshi (petitioner herein). Under such circumstances, due intimation/notice was given to respondent, of petitioner having become owner of the suit property. Accordingly, neither Syed Hilal Nizami nor Syed Kamaal Nizami were left with any right, title or interest in the suit property as the same had been transferred to the petitioner herein.
33. Law is also well settled that any defect in the alleged title of landlord cannot be questioned by tenant. The Landlord is merely required to show that he is something more than a tenant RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 15 of 21 and nothing beyond that. The alleged title documents Mark A even though, do not make petitioner herein as complete and legal owner of the suit property however they are evidence to the fact that all the right, title and interest of the seller (Syed Kamaal Nizami) now stands transferred to petitioner herein. So landlordtenant relationship does get established between the petitioner herein and the respondent since petitioner has stepped into the shoes of earlier landlord. The fact that Syed Halal Nizami stopped collecting rent from respondent no. 1 also proves that he was no longer the landlord.
34. As far as the second requirement regarding nonpayment of rent is concerned, respondent's admitted case is that he had never paid any rent to the petitioner as he has not acknowledged the petitioner herein as his landlord ever. Under such circumstances, there is no question of respondent having paid any rent to the petitioner herein. Hence it stands proved that the rent has not been paid by respondent no. 1 to the petitioner atleast from February 1998 onwards, as has been alleged in the eviction petition.
35. As far as the third requirement of service of demand notice and subsequent nonpayment of arrears of rent by respondent is concerned, it is again admitted fact that respondent had received legal notice Ex. PW1/E and Ex. PW1/E1 from the petitioner. Since respondent has duly replied to the said legal notice vide his reply Ex.RW1/10 and Ex. RW1/12. It is again admitted fact that respondent has not paid any rent to the petitioner even after service of legal notice Ex. PW1/E and Ex. PW1/E1. The only question which remains for adjudication is regarding the rate of rent which has been claimed by petitioner. The petitioner RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 16 of 21 has claimed that the rate of rent was settled at Rs. 3000/ per month at the time of compromise of criminal case vide FIR no. 93/97 Ex. PW1/D. As already stated above, there is no document on record to prove the aforesaid contention of petitioner. In fact, petitioner is himself not sure of the rent amount since in his cross examination dated 06.09.2014, petitioner states that he had demanded rent once from respondent in the year 20052006 and in pursuance of the same, respondent no. 1 had paid Rs. 8000/ which was the rent for the period of one year. He also admitted that he had himself demanded Rs. 3000/ per month as rent from respondent no. 1 and also further admitted that he cannot provide any proof that the rent for suit property was agreed @ Rs. 3000/ at any point of time. It is worth stating that had the rent been Rs. 3000/ per month, the alleged Rs. 8000/ paid by respondent in the year 200506 to petitioner, cannot be an amount of rent for a period of one year as was stated by petitioner as PW1. In fact, the evidence on record is totally insufficient for the court to conclude that the rate of rent was Rs. 3000/ per month or something else. Even respondent has not brought any proof on record as to what was the last paid admitted rent even to the previous landlord, Sh. Syed Hilal Nizami.
36. It is settled proposition of law that even if the landlord has demanded rent at a much higher amount then what was the agreed and correct rent amount vide the demand notice, the tenant was still bound to make payment of actual rent amount which was legally due from him. Reliance can be placed on the judgment of Hon'ble Delhi High Court in Deepak Nijhawan RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 17 of 21 And Anr. vs Rn Abrol RSA 76/2012 decided on 23 December, 2015 and also in Prakash Nath Vatsa vs Uttam Chand Chadha 1963 PLR 1116 of Hon'ble Punjab and Haryana High Court.
37. The respondent herein has not made payment of any rent to petitioner despite service of demand notice. Hence all the three requirements are satisfied in this case. The petitioner has been successful in proving the aforesaid ground of eviction on account of nonpayment of rent.
Ground for eviction under section 14 (1) (b) of DRC Act As far as above ground is concerned, in order to be successful, petitioner was required to prove that respondent no. 1 had sub let, assigned or parted with the whole or part of the suit property to respondent no. 2 without obtaining his consent in writing. In the present eviction petition, a bare allegation has been made by the petitioner that respondent no. 1 had sublet suit property to respondent no. 2, some where in the month of February 2006. However, no positive evidence has been placed on record by petitioner to prove the said allegation. There is no documentary proof which shows that the suit property was ever in exclusive possession of respondent no. 2.
Moreover, it is also an admitted fact that respondent no. 2 is the son of respondent no.1 and hence, being family member of respondent no. 1, he was entitled to occupy the suit property, for which no consent or permission either orally or in writing, was required from the petitioner.
It cannot be denied that a subtenancy is created by tenant at the back of landlord who is a stranger to the terms of the RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 18 of 21 agreement ,if any, qua the subtenancy. However the initial onus is still upon the petitioner/landlord to prove the fact that a third person other than the tenant was in possession of suit property and only when the said initial onus is discharged by landlord, the burden then shifts to the tenant to prove that there was no subtenancy. However in the instant case petitioner has not been able to discharge even the initial onus. Accordingly it is not proved that there was any subletting by respondent no.1 in favor of respondent no.2.
Ground Under Section 14 (1) (j) of DRC Act
38. As far as this ground for eviction is concerned, the plaintiff has alleged that respondent no. 1 had raised the walls on the roof of suit property without his permission and with intention to damage the above house, thereby causing material loss to the value of the said house. On the other hand, defence of the defendant is that the suit property badly required repairs to make it habitable as landlord never carried out any repairs or renovation in the same. Hence, he sent a legal notice to the landlord for carrying out repairs but there was no response from the landlord. Thereafter he was forced to carry out necessary repairs to make the suit property habitable.
39. As far as these allegations are concerned, petitioner in his cross examination dated 06.09.2014 has stated that he does not know whether any construction had been carried out by respondent in the suit property as was stated in his evidence affidavit Ex. PW 1/A or even as mentioned in the petition. This admission on the part of the petitioner establishes the fact that he is himself not aware about any construction or alteration made by the RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 19 of 21 respondent in the suit property.
40. It can further be seen that respondent has stated in his affidavit Ex. RW1/A at Para 15 that he had sent legal notice Ex. RW1/6 dated 27.07.2002 to the landlord for carrying out repairs in the suit property but none appeared from the side of landlord to carry out the repairs thereby forcing him (respondent) to carry out the repairs to make suit property habitable but without tampering with the structure of the suit property. Despite there being a specific denial of any tampering caused to the existing structure, there is no crossexamination of respondent by counsel for the petitioner on the same. There is also no cross examination on the aspect of legal notice sent by respondent to carry out repairs. It is well settled law that in case there is no crossexamination of witness on a particular point, the effect of non crossexamination is deemed to be an admission of fact by the party who has not cross examined despite opportunity being given.
41. Even otherwise, there is no documentary evidence in support of the allegation that respondent no. 1 had caused any substantial damage to the suit property by making alterations in the same. Hence, these allegations of the petitioner have remained unproved and respondent no. 1 cannot be directed to evict himself from the suit property on the said allegation. Decision
42.In view of aforesaid observations and finding eviction petition of petitioner is partly allowed qua the ground under Section 14 (1) (a) of Delhi Rent Control Act however petition stands dismissed qua the grounds under Section 14 (1) (b) and Section 14 (1) (j) of Delhi Rent Control Act.
RC ARC No. 6189/16Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 20 of 21
43.Further, perusal of record shows that order under Section 15(1) of DRC Act has not been passed as the Ld. Predecessor in his order dated 21.02.2012 has observed that order under Section 15 (1) shall be passed only after trial in case petitioner is successful. Hence, order under Section 15 (1) DRC is hereby passed with direction to respondent to pay to the petitioner, rent @ Rs.20/ per month (Petitioner has been unable to prove that the rate of rent was settled at Rs. 3000/ per month) for the period December 2006 onwards (the eviction petition has been filed on 19.12.2009 so the legally recoverable rent can only be for three years immediately before the date of filing of eviction petition) till April 2018 within one month from today and continue to do so in future, so as to avail benefits under Section 14 (2) of DRC Act.
File be consigned to record room after due compliance. Announced in the open Court on this 20th day of April 2018. This judgment consists of 21 signed pages.
(Atul Krishna Agrawal) Administrative Civil Judgecum Additional Rent Controller cumCommercial Civil Judge:
(South):Saket Courts, New Delhi 20.04.2018 RC ARC No. 6189/16 Judgment dated 20.04.2018 Sadruddin Vs. Mohd. Hanif Page no. 21 of 21