Delhi District Court
Hari Babu vs Smt. Sukh Devi on 23 March, 2018
IN THE COURT OF SH. DILBAG SINGH PUNIA,
DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURT: DELHI.
RCT No. 26/2016
Hari Babu
S/o Late Shyam Lal
R/o C1425, Second Floor,
Jahangir Puri, Delhi. ..... Appellant
Versus
Smt. Sukh Devi
S/o Late Pati Ram
R/o C1425, Jahangir Puri,
Delhi. ..... Respondent
Date of Institution: 11.07.2016 Date of Judgment: 23.03.2018 : J U D G M E N T :
1. By this judgment, I shall dispose of an appeal under Section 38 of "The Delhi Rent Control Act, 1958" (in short, the 'Act') carried out against orders passed by Ld. ARC (North) in eviction petition bearing E.No. 34/14.
2. Facts of the case in brief are that Smt. Sukh Devi (hereinafter referred to as landlord) filed an eviction petition on the ground of non payment of rent concerning second floor of property bearing no. C1425, Jahangir Puri, Delhi, which was decreed. Landlord had averred in the Hari Babu Vs Sukh Dev Page 1 of 10 petition that appellant (hereinafter referred to as tenant) is the real brother of her husband; that her husband had purchased the suit property in 1985; she had demanded rent @ Rs.1000/ per month vide notice dated 07.12.2012 and despite service of notice, tenant had not tendered/paid the arrears of legally recoverable rent.
3. In the grounds of appeal, it has been averred that landlord failed to prove the relationship of landlord and tenant as no oral or documentary evidence has been led concerning this. It is claimed that ld. Trial court ignored that landlord failed to prove the service of demand notice as the same was not exhibited. That plea of the tenant regarding contribution of Rs.50,000/ and admissions of the landlord in her cross examination have been ignored. It is also claimed that date of letting out and rate of interest have not been proved and no independent witness evidencing relationship of landlord and tenant has been examined.
4. It is further claimed that in the notice, period for which the tenant was in arrears of rent has not been specified which contravenes the settled law vide which landlord has to specify the amount, rate and period for which arrears of rent are due. It is also claimed that written directions have been given to the tenant to pay the rent @ Rs.1,000/ per month from February 2010 and as a matter of abundant precaution, a sum of Rs.75,000/ has been deposited with the reservation of the right to recover this amount in future.
Hari Babu Vs Sukh Dev Page 2 of 105. In the reply of the appeal, landlord has controverted the case put forth by the tenant and the order of ld. Trial court has been supported. It is stated that appeal is not maintainable as tenant has willingly and deliberately not paid rent for the period of May and June 2016, whereas he has admitted the relationship of landlord and tenant. It is further submitted that second default has also been committed by the tenant. It is also claimed that petition is delaying tactic to harass the landlord who is an old aged widow lady and has also filed an eviction petition on the ground of bonafide requirement.
6. It is stated that tenant has admitted in his written statement about receipt of demand notice. It is argued that receipt of demand notice was also admitted in the cross examination also and hence, tenant cannot be permitted to raise this issue. It is claimed that tenancy can be oral and was an oral one. Assertion regarding contribution of Rs.50,000/ has been controverted.
7. Arguments were heard at the bar. Ld. Counsel Sh.Mukesh Sharma, for the tenant and Sh.Rajender Yadav, for landlord have been heard at length.
8. On 25.05.2017 Sh.Mukesh Sharma had advanced the arguments that notice in this case was not exhibited and despite the same, benefit under Section 14 (2) of the Act was given which was not proper. Issue of relationship of landlord and tenant was also raised. On Hari Babu Vs Sukh Dev Page 3 of 10 06.11.2017 Sh.Mukesh Sharma had sought a date for showing a judgment which mandates that notice has to be specific and it has to contain the date from which rent is due. Notice of this case was also challenged on the ground of vagueness. On 22.11.2017, it was jointly agreed that only issue which was to be decided of in this case was about service of notice and its contents. Despite repeated opportunities, Sh.Mukesh Sharma has not filed any judgment to substantiate his submissions.
9. Ld. Counsel for the respondent on the other hand has relied upon para 18 (B) of the eviction petition and argued that Sh.Mukesh Sharma was estopped from raising this plea of specificness of the notice. It was argued by Mr.Rajender Yadav that main plank of Sh.Mukesh Sharma was the relationship of landlord and tenant and once the finding has come against his client, he was estopped from raising the plea of service of notice.
10. I have carefully perused the records of the case and considered the submissions. Trial Court Record has been requisitioned and perused.
11. I am not in consonance with ld. Counsel for the appellant as facts of the case are otherwise. In para 18 (B) of the eviction petition, it was mentioned that notice required as detailed in para 18 (i), had been served vide which rent for 08 years was demanded and tenant had neither paid nor tendered the arrears of rent.
Hari Babu Vs Sukh Dev Page 4 of 1012. Para 18 (a) (i) and 18 (b) of petition and their corresponding reply of written statement are as under: "18(a) The ground on which eviction Non payment of rent of the tenant is sought:
(i) The tenant/respondent has neither paid nor tendered the arrears of rent of the tenanted premises at the rate of Rs.1000/ without electricity and water charges W.E.F. 8 years upto date despite demands made by the petitioner and despite the service of the legal notice upon the respondent.
18(b) Whether notice required has YES
been served upon the respondent
"18. (a) That the contents of the para no.18.(a) are wrong and
specifically denied as explained.
(i) That contents of Para No.(i) are matter of record and
needs no reply, however the petition of the petitioner is based on false and frivolous facts and is liable to be dismissed.
18. (b) That the contents of the para no.18(b) are matter of record, however the said notice was sent on false and frivolous grounds."
13. In view of the afore extracted admission, the appellant is estopped from raising the issue of exhibition of the demand notice as has Hari Babu Vs Sukh Dev Page 5 of 10 also been so observed by ld. Trial court. No need to say that admitted facts need not be proved. Section 58 of the Evidence Act is the statutory provision in this regard and issue regarding exhibition cannot be raised. When Sh.Mukesh Sharma was confronted with this legal position then he had no answer. So, the grounds taken in this regard are not tenable and are disallowed.
14. Appellant in para 4 of his evidence by way of affidavit Ex.RW1/A has taken a stand contra to his version in para 18 of his written statement and this goes to show that appellant is not a person worthy of belief as conjoint reading of para 4 of Ex.RW1/A and para 18(b) of his reply goes to show that he has blown hot and cold in the same breath.
15. Although, the ground concerning relationship of landlord and tenant has not been pressed before this court, still it is deemed proper to take up this issue. In civil matters respondent is required to prove his/her case by way of preponderance of probabilities and I have no hesitation in observing that ld. Trial court has rightly given its observations that by way of preponderance of probabilities, landlord has proved the relationship of landlord and tenant. PW1 Smt. Sukh Devi has denied the suggestion that respondent was not the tenant or that he was residing on the first floor of the suit property in the capacity of coowner. She has categorically denied that tenant had contributed Rs.50,000/ at the time of construction of first floor. Appellant has not led any satisfactory evidence Hari Babu Vs Sukh Dev Page 6 of 10 in support of his case concerning coownership and mere self serving assertion in para 2 & 3 of Ex.RW1/A are of no help.
16. Another reason to disbelieve the appellant on the question of coownership is the evidence led by him and disclosures made in his cross examination. Ld. Trial court has rightly concluded that appellant as RW1 has not stood true on the touch stone of cross examination. Tenant's version that his mother was not aware about giving of Rs.50,000/ and about taking of Rs.30,000/ from his father is of no credence. Tenant has not shown as to from which account he had drawn Rs.20,000/ which he had arranged of his own. He has not explained whether it was from his savings or he had borrowed the same from someone. No witness was examined by him in this regard. So plea of coownership has not been established and this Tribunal is also of the same view on the evidence.
17. Although appellant has no legal remedy of appeal on the questions of finding of facts due to embargo of Section 38 of "The Act"
under which only legal questions are to be entertained. Still factual conclusions arrived at by ld. trial court have been considered by this Tribunal and have been found to have been correctly arrived at.
18. Last argument which alone was advanced with vehemence was that the notice does not fulfill the requirement of Section 14 (1) (a) as it was not containing the specific date and the period from which the rent was due. Despite grant of numerous opportunities Sh.Mukesh Sharma Hari Babu Vs Sukh Dev Page 7 of 10 did not provide any precedent to substantiate his submissions in this regard and today had to give up. He stated today that he has no precedent which can substantiate his arguments concerning notice being invalid.
19. I have no hitch to observe that this submission is not appropriate as legal position in this regard is well settled. It is unreasonable and unjust to insist that notice of demand must contain exact figure or exact period. The true legal position is that notice of demand should, in substance be one for arrears of rent. After all the tenant, is also enjoined upon to calculate the arrears of rent in his own way. The clause requires him to pay the whole of the arrears of rent legally recoverable from him. It does not require him to pay the arrears of rent claimed by the landlord which are not legally recoverable from him. The clause has given the opportunity to the tenant to pay the arrears within two months of the date of service of notice on him. This purpose is served if the landlord serves a notice of demand. Any mistake, whether intentional or bonafide in the particulars of the arrears of the notice of demand will not affect its validity. It is the obligation of the tenant to pay the rent and if more amount than due is given in the notice, tenant has to pay the amount due according to him and not the amount demanded in the notice. Merely demanding a higher amount in notice does not invalidate the notice. In Rakesh Kumar Vs Hindustan Everest Tools Ltd., 1988 (1) RCR 369 (SC): AIR 1988SC 976 in which 1986 (29) DLT 216 was reversed, it was held that notice has to be read in a common sense manner Hari Babu Vs Sukh Dev Page 8 of 10 as an ordinary person will understand the same and if an ordinary reading from layman's point of view, notice satisfies that a layman can understand as to what it had contained, then notice has to be held as a valid one.
20. To satisfy myself, I have perused the notice dated 07.12.2012. Para 1 gives amount of rent and period of 08 years since when the rent was due. Para 2 mentions that two years ago landlady had approached the tenant and he had admitted the arrears of rent. It also mentions that tenant had assured that he will vacate the rented premises. The amount was also mentioned in para 3 of the notice and a bare perusal of para 1 to 3 of notice goes to show that there is no ambiguity in the notice and as a layman tenant/ appellant could have understood the intent of the landlord and I have no hesitation to observe that notice fulfills all the requirements of a valid notice. The duty of the tenant was to reply to the notice which he has not done. In the reply, the tenant should have taken the pleas taken by him in his written statement before ld. ARC. He should have tendered the rent which was due according to him which also admittedly has not been done. So, I have no hitch to observe that notice is perfectly valid and appellant/tenant cannot get any benefit out of the same.
21. Once service of valid notice is held to have been affected, next aspect required to be seen is as to whether arrears of rent legally recovered have been tendered or not. Admittedly, no rent was tendered. Relationship of landlord and tenant has already been held to have been Hari Babu Vs Sukh Dev Page 9 of 10 proved as tenant has miserably failed to prove the alleged coownership. Arguments advanced to the contrary are not tenable in view of the foregoing discussion.
22. In view of the afore going discussion, appeal is not maintainable and hence dismissed.
23. Trial Court Record be returned along with copy of this judgment.
24. Appeal file be consigned to the Record Room.
Announced in the open court on this day of 23rd March, 2018 (DILBAG SINGH PUNIA) District & Sessions Judge (North) Rohini Courts, Delhi.
Hari Babu Vs Sukh Dev Page 10 of 10