Delhi District Court
Sh. Mukesh Kumar Gupta vs Ms. Sarphina on 21 March, 2018
IN THE COURT OF SH. ATUL KRISHNA AGRAWAL:
ADDITIONAL RENT CONTROLLER (SOUTH):
COURT ROOM NO. 204, SAKET COURTS: NEW DELHI
EVICTION PETITION NO. 6163/2016
Sh. Mukesh Kumar Gupta,
S/o Shri R K Gutpa
R/o D2A, 46B, Janakpuri
New Delhi110058
... Petitioner
Vs.
Ms. Sarphina
R/o 1731, Gurdwara Road
Kotla Mubarakpur,
New Delhi
...Respondents
Application for eviction under section 14 (1) (a) R/W Sec 14 (2) of the
Delhi Rent Control Act
DATE OF INSTITUTION : 13.04.2005
DATE OF RESERVING ORDER : 09.02.2018
DATE OF PRONOUNCEMENT : 21.03.2018
JUDGMENT
1. Vide this judgment, I shall dispose off the petition filed by petitioner under section 14 (1) (a) r/w Sec 14 (2) of the Delhi Rent Control Act (for short "DRC Act") thereby praying that an order of eviction be passed in his favour and against respondent, in respect of House No.1731, Gurudwara Road, Kotla Mubarakpur, New Delhi
2. In brief, the case of the petitioner is that he is the owner and landlord of suit property comprising of one room and covered varandah in the front of the aforesaid property (hereinafter referred to as the "suit property") as shown in site plan. The same was let out to respondent in the year 1983 by one Shri. Sri Chand, the predecessor in interest of petitioner. It is further averred that earlier the monthly rent of the suit property was Rs.200/ excluding electricity and water charges. It is alleged that the respondent is a habitual defaulter in making payment of monthly rent and she was in arrears of rent w.e.f. 01.08.1989. Hence, petitioner served a legal notice dated 17.10.1989 upon her and terminated her tenancy w.e.f. 30.11.1989 and also demanded arrears of rent.
3. It is further the case of petitioner that he had filed an eviction petition No. E 76/1990 titled as "Mukesh Kumar Gupta Vs Ms Sarphina" against respondent, on the ground of nonpayment of rent and in the said matter, Ld. court of Sh. O. P. Gupta, the then ARC, Delhi, vide its order dated 17.10.1995, held that section 14 (1) (a) was made out. It is further stated that the respondent was directed to pay or deposit rent at the rate of Rs.200/ per month w.e.f. 01.08.1989 till the last day of the month previous to the one in which payment or deposit is made, within one month and to continue to pay or deposit future rent at the rate of Rs.200/ per month, by the 15th day of each succeeding month.
4. It is further stated that respondent filed an appeal against the order dated 17.10.1995 but the same was dismissed on 02.02.1996. The respondent deposited the arrears of rent but failed to pay the arrears in time or as per order dated 17.10.1995 however Ld. Successor Court of Sh. N P Kaushik, the then ARC, Delhi, took a lenient view and vide its order dated 09.10.1996, granted benefit of section 14 (2) of DRC Act to the respondent by imposing a cost of Rs.500/ upon her for delay and thus, respondent has already availed the benefit of section 14 (2) of DRC Act, to avoid eviction.
5. It is further stated that after the expiry of more than three years of statutory tenancy of respondent, the petitioner through his counsel served a legal notice dated 10.09.2003 upon her and as per law, enhanced the monthly rent of the suit property to Rs.220/ per month w.e.f. 01.11.2003. It is stated that the legal notice dated 10.09.2003 was duly served upon respondent. However respondent tendered money orders for the month of November and December 2003 by sending only part of the rent amount and not the whole of rent / arrears of rent and due to this, the said money orders were refused / returned by petitioner, being part tender.
6. It is alleged that respondent is in arrears of rent since 01.11.2003 @ Rs.220/ per month. Hence when respondent became in arrears of rent for more than three consecutive months, she committed second default in payment of rent. Accordingly, legal notice dated 22.05.2004 was sent by him to respondent vide registered cover and UPC. Petitioner again served another legal notice dated 05.06.2004 upon respondent vide registered cover, speed post and UPC and again demanded the whole of the arrears of rent, which was duly served upon respondent. The said notice was replied by counsel for respondent and false excuses were given. It was claimed in the reply that the respondent was going to send one cheque to petitioner as payment of arrears of rent but infact, till date (for the period of last more than ten months), no such cheque was sent by respondent or was received by petitioner
7. It is averred that respondent filed a suit on 02.08.1988 against her landlord which was dismissed on 17.07.1989. Her another petition under section 45 DRC Act filed on 25.02.1987 against the landlord was dismissed on 03.05.1988. It is further stated that her suit No.483/1990 was also dismissed with cost of Rs.100/ on 11.04.1994. Yet another suit no.804/1989 filed by her against the father and brother of petitioner, was also dismissed. Another petition filed by respondent u/s 44 of DRC Act was however, pending.
8. Accordingly, the present petition under section 14 (1) (a) r/w Sec 14(2) of the DRC Act was filed by petitioner on account of nonpayment of rent.
9. Written statement was filed by respondent stating therein that there was no cause of action in favour of petitioner as well as the court had no jurisdiction to try and decide the case. It is stated that she (respondent) had tendered rent for the period from 01.11.2003 to 30.11.2003 @ Rs.200/ per month through money order dated 03.11.2003, which was received by petitioner on 05.11.2003. It is further stated that she had paid / tendered rent @ Rs.220/ per month uptill 30.06.2004 (including Rs.20/ as arrears of rent for November 2003 after deducting Rs.200 already received by petitioner) for a total amount of Rs.1,560/ vide cheque no.809697 dated 14.06.2004, to the petitioner with the reply dated 14.06.2004, to the notice dated 05.06.2004 however, petitioner did not present the said cheque in his account for encashment, just to make a false case of nonpayment of rent.
10.It is admitted by respondent that petitioner had enhanced the rent to Rs.220/ per month and she agreed to pay the same just to avoid any controversy between the parties through her reply dated 14.06.2004. Respondent contended that the petitioner does not have any ground for eviction on the account of non payment of rent. It was admitted by her that she received legal notice dated 05.06.2004 and stated that she also replied to the same vide reply dated 14.06.2004, as stated above.
11.It was however denied that petitioner was the owner and landlord of suit property. It was also denied that respondent was let out one room and covered verandah in the property and it was contended that she was tenant in respect of one room, kitchen, latrine, bathroom, on the ground floor and terrace on the first floor and common passage of tenanted property.
12.The respondent did not deny the fact that the earlier eviction petition u/s 14 (1)
(a) of DRC Act vide E76/1990, filed by petitioner against her, had been allowed by the then Ld. ARC, thereby giving her benefit u/s 14(2) of the Act.
13.It was however denied by her that she was a habitual defaulter in making payment of monthly rent. It was also denied that she was in possession of suit property by virtue of being a statutory tenant. It was further denied that petitioner had served a legal notice dated 10.09.2003 upon her to enhance the rent from Rs.200/ to Rs.220/ per month. It was alleged that petitioner had accepted the rent for the month of November 2003 but he deliberately and intentionally returned the rent amount sent by her (respondent) for the period December 2003. It was denied by her that she was is in arrears of rent since 01.11.2003 or that she was in arrears of rent for more than three consecutive months. It was further denied that legal notice dated 22.05.2004 was served upon her. All other allegations are denied and prayer is made for dismissal of the eviction petition.
14.Replication was filed on behalf of petitioner to the WS of respondent denying the objections raised by respondent. It was denied that respondent tendered any rent for the period 01.11.2003 to 30.11.2003 through money order or otherwise. It was further denied that any cheque was received by petitioner nor paid or sent by respondent. It was reiterated that respondent was tenant in respect of only one room with covered varandah. It is averred that the ground of eviction was available with him as respondent had committed second default in making the payment of monthly rent. It is further stated that respondent is in arrears of rent for more than 21 months at present. It is reiterated that legal notice dated 10.09.2003 was duly sent and served upon respondent. All other contentions raised in the WS are denied.
15.Thereafter, petitioner led his evidence and examined himself as PW1, being the sole witness. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon following documents :
a) Site plan as Ex.PW1/1,
b) certified copy of orders / judgment dated 17.10.1995 in eviction petition no.E76/1990 as Ex.PW1/2,
c) certified copy of order dated 09.10.1996 in the above matter as Ex.PW1/3,
d) legal notice dated 10.09.2003, original postal receipt and original UPC as Ex.PW1/4 to Ex.PW1/6,
e) original returned envelop as Ex.PW1/7,
f) copy of written statement as Ex.PW1/8,
g) legal notice dated 22.05.2004, original postal receipt and original UPC as Ex.PW1/9 to Ex.PW1/11,
g) original returned envelop as Ex.PW1/12,
g) legal notice dated 05.06.2004, original postal receipt of registered cover and speed post and original UPC as Ex.PW1/13 to Ex.PW1/16 and,
h) original AD cards of registered cover and speed post as Ex.PW1/17 & Ex.PW1/18
16.This witness was duly cross examined by counsel for respondent. PE was closed and thereafter, matter was fixed for RE.
17.In respondent's evidence, respondent examined herself as RW1 and tendered her evidence by way of Affidavit Ex.RW1/1 and relied upon following documents:
a) money order receipts as Ex.RW1/A (colly.),
b) copy of reply dated 14.06.2004 and cheque No.809697 dated 14.06.2004 as Ex.RW1/B & Ex.RW1/C,
c) copy of judgment in suit no. 917/1986 as Ex.RW1/D,
d) copy of contempt application as Ex.RW1/E,
e) copy of judgment in petition u/s 44 DRC Act as Ex.RW1/F,
f) documents of petition u/s 45 of DRC Act as Ex.RW1/G (colly.),
g) copies of relevant documents in suit no. 804/89 as Ex.RW1/H (colly.),
h) copy of documents in suit no. 55/93 as Ex.RW1/I,
i) copy of order dated 23.08.1990 in suit no. 483/90 as Ex.RW1/J, J) and WS of respondent as Ex.RW1/K.
18.This witness was also duly cross examined by counsel for petitioner. Thereafter, RE was closed on 18.02.2017 and matter was fixed for final arguments.
19.I have heard arguments from both sides and have also perused the record.
20.The present petition filed by the petitioner is under Section 14 (1) (a) of DRC Act, on the ground that respondent has failed to tender the rent and has committed default. In order to succeed, the petitioner is required to prove the existence of landlord and tenant relationship between the parties, secondly, the fact that respondent was in arrears of legally recoverable rent and thirdly, non payment of rent within two months despite service of notice of demand of arrears of rent.
21.As far as the first requirement is concerned, the landlord and tenant relationship is an admitted fact. Though it can be seen in the WS that respondent denied at one place that petitioner was the owner and landlord of the suit property but she also admitted at various places having tendered previous rent prior to notice dated 05.06.2004 Ex.PW1/13 and even subsequent rent to the petitioner himself, by way of money orders. Even during her cross examination as RW1, specific question was put to her as to whom she had been tendering rent whereupon she admitted that she was tendering her rent to the petitioner herein. Though she also stated that she had become the tenant initially under one Sh. Sri Chand, who was the original landlord but he has since expired and she was not recognizing petitioner as her landlord. However, in view of the admission that respondent was paying rent to petitioner, there cannot be any doubt that petitioner is the landlord of respondent.
22.Even otherwise, it has also come on record that petitioner had filed another eviction petition no. 76/1990 u/s 14(1) (a) of DRC Act against respondent, on account of non payment of rent which had been allowed by the then court of Sh. V.P. Gupta, Ld. ARC, Delhi vide order dated 17.10.1995 Ex. PW1/2. Under such circumstances, there remains no doubt about the existence of landlord and tenant relationship between the parties. Reliance can also be placed on the judgment in the case of Madan Mohan Vohra Vs Sharwan Kumar, 1990 (42) DLT 271.
23.As far as the second requirement of arrears of rent is concerned, though the initial rent was Rs.200/ per month but it is not in dispute that the rate of rent was increased to Rs. 220/ per month though the date from which the increase took place, has been disputed by respondent. As per the petitioner, he had increased the rent vide notice Ex. PW1/4 dated 10.09.2003 itself w.e.f. 01.11.2003, by increasing the rent from Rs. 200/ to Rs. 220/ i.e. 10% increase in rent, in view of provisions of DRC Act. On the contrary, as per the respondent, she had been duly tendering rent @ Rs. 200/ as she had not received the aforesaid notice Ex. PW1/4 and it was only upon receiving notice Ex. PW1/13 dated 05.06.2004 that she came to know about the increase in rent and hence, she sent the arrears of rent @ Rs. 220/ per month from December 2003 onwards till June 2004 and Rs.20/ balance rent of the month of November 2003 (money order of rent @ Rs.200/ for November 2003 was received by petitioner's wife). Under such circumstances, the question which arises is whether the legal notice dated 10.09.2003 was duly served upon respondent or not ?
24.Perusal of the notice dated 10.09.2003 Ex. PW1/4 shows that the said notice had been sent by petitioner to the respondent by RC as well as by UPC. The legal notice bears the correct address of the respondent. Further even the UPC Ex. PW1/6 bears the same correct address of respondent which is that of the suit property. Under such circumstances, since notice was sent on the correct address by registered post as well as UPC, the same shall have to be deemed to be duly served in the eyes of law. Reliance can be placed on judgement of Hon'ble Delhi High Court in the case titled as Adil Hussain vs Amtul Shamim CM(M) 1040/2010 & CM 14488/2010 decided on 15.04.2015, wherein it was held as follows : "In Kanwal Raj Sadana Vs. D.D. Saigal 58 (1995) DLT 814 relied upon by the learned counsel for the petitioner this Court held that though the envelope sent through registered post was returned unserved the notice sent under postal certificate was never returned and must have been received by the tenant. Thus it was held that a valid service had been effected. In Prime Industries & Ors. (supra) tenant was served notice for payment through UPC and as regards registered post it was held that because tenant was avoiding service by registered post, since notice sent by UPC was correct address of the tenant and the same was not received back, it was presumed that tenant was served with the notice of demand."
25.Hence, in view of Sec 27 of the General Clauses Act, the presumption was of due service. In case, the respondent denied having received the notice, it was incumbent upon her to prove the same as the onus now shifted on her to prove that there had been no service of said notice upon her however, no evidence has been lead by her in this regard. In view of the same, since the notice Ex. PW1/4 is legally served, the respondent ought to have paid rent @ Rs. 220/ per month itself and not the earlier rent of Rs. 200/ which she had continuously paid.
26.As regards the period from which the rent remains unpaid is concerned, the petitioner has claimed that the rent was increased from November 2003 onwards but since respondent had sent money order for that month and even subsequent month @ Rs. 200/ per month only, the same was not a valid tender of rent as the rent ought to have been paid @ Rs. 220/ per month and hence, the rent sent through money order was refused.
27.As far as refusal of money order is concerned, the same is undisputed however the rent for the month of November 2003 had been accepted by petitioner's wife which was sent @ Rs. 200/. Later on the petitioner started refusing the money orders from December 2003 onwards sent @ Rs.200/ as respondent continued to send rent @ Rs.200/per month only and not the increased rent of Rs. 220/ per month. Accordingly, petitioner was within his right to have refused the money orders which was sent for a lesser amount of rent.
28.In fact, perusal of money orders sent by respondent also shows that she continued to send money orders @ Rs. 200/ per month for the months of December 2003 till June 2004 but she did not choose to add the arrears of rent of previous month. Meaning thereby, at the time of tendering rent for January 2004, respondent ought to have included the arrears of rent for month of December 2003, since money order for the month of December 2003 was refused and so forth. This shows a lack of bonafide on the part of respondent.
29. Even tendering of rent by money order is not a valid tender once the rent is refused by landlord. In Sarla Goel and others Vs Kishan Chand JT 2009 (9) SC 21 , the Hon'ble Supreme Court held as under : "In Atma Ram Vs. Shakuntala Rani (2005) 7 SCC 211, this Court observed at paragraph 19 as under : "It will thus appear that this Court has consistently taken the views that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision" (Emphasis supplied).
Again in paragraph 20 of the same decision, this Court observed as follows : "Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent a written receipt for the amount paid to him, signed by the landlord or his authorized agent. It is also open to the tenant to remit the rent to his landlord by postal money order. The relevant part of Section 27 of the Act reads as under: "27. Deposit of rent by the tenant (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner : Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order."
21. This Court in the aforesaid decision, after examining Section 27 of the Act observed at paragraph 21 as follows : "The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by Sub section (2) of Section 27, There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act. and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default."
30.Accordingly, as per the scheme of DRC Act, in case of refusal to accept the rent, tenant was required to deposit the same before the court under Section 27 of DRC Act which is not done in the present matter. Accordingly, it is sufficiently proved that the respondent was in arrears of rent for the months of December 2003 till June 2004 @ Rs. 220/ per month and also arrears of balance rent of Rs. 20/ towards month of November 2003.
31.As far as service of demand notice dated 05.06.2004 is concerned, respondent has admitted having received demand notice dated 05.06.2004 Ex. PW1/13. In fact she also replied to the said notice which is reply Ex. RW1/B. Petitioner has also admitted having received the said reply to this legal notice so this fact is proved.
32.As regards non payment of rent even after receiving of legal notice Ex. PW1/13 is concerned, as per respondent she had sent a cheque of Rs.1560/ as arrears of rent from December 2003 till June 2004 @ Rs. 220/ per month and further Rs. 20/ towards the balance rent for the month of November 2003, however, the petitioner did not intentionally encash the said cheque to make a false ground of nonpayment of rent. On the other hand, as per the petitioner, no cheque had been sent by respondent along with her reply, so there was not question of not encashing the same.
33.Since, the envelope vide which reply to the legal notice was sent by respondent has already been opened by the petitioner, it is not possible for the court to give a conclusive finding whether the said reply also contained the cheque of Rs.1560/ or not. However, the attending circumstances show that the petitioner's stand, has been sufficiently proved that no cheque was sent by respondent along with her reply.
34.It can be seen from the record that the respondent had been paying rent to the petitioner all throughout by way of money orders Ex. RW1/A, prior to the service of legal notice Ex. PW1/13 and even after service of legal notice Ex. PW1/13. It is then quite surprising as to why the respondent instead of paying rent by money order, all of a sudden chose to send a cheque of Rs. 1560/ towards arrears of rent. Infact, in case the arrears of rent was sent through money order, respondent could have easily been able to prove the conduct of petitioner in refusing to accept the money order towards arrears of rent. However, a cheque was sent which the petitioner allegedly did not choose to encash and this allegation cannot be proved at all in view of lack of evidence. Considering the history of previous litigations between the parties and their hostile relations, it is highly improbable that respondent would send rent through a cheque instead of sending it by way of money order as she had been doing all throughout. Infact even after sending this cheque, the respondent again reverted back to sending rent through money orders. Hence this contention of sending arrears of rent through cheque, is totally unreliable.
35.Further in her crossexamination, respondent had admitted that she became aware about the nonencashment of cheque from her banker, however despite having come to know about the said fact, she did not chose to take any steps for depositing the rent before the court. This also ultimately shows the malafide conduct of respondent, for if the intention of respondent had been bonafide, she would have immediately deposited the rent before the court under Section 27 of DRC Act. However she chose to remain silent and it was only after the petitioner filed the present eviction petition, and an order under Section 15 (1) of DRC Act was passed on 27.05.2002 directing her to pay the rent w.e.f. 01.12.2003 @ Rs. 220/ per month, that she started depositing the rent before the court. Hence there is no merit in the contentions of the respondent. It is proved that respondent has not paid arrears of rent even after service of notice Ex. PW1/13.
DECISION
36.In view of aforesaid observations and findings, the eviction petition u/s 14(1)
(a) of DRC Act stands allowed. Since it has already come on record that the petitioner's earlier eviction petition u/s 14 (1) (a) vide E76/1990 had been successful vide judgment dated 17.10.1995 Ex. PW1/2 and the respondent has already availed the benefit of Sec 14(2) in the aforesaid petition vide order dated 09.10.1996 Ex. PW1/3, the respondent is not entitled to any further benefit on account of default in payment of rent. Accordingly, eviction order is hereby passed and respondent is directed to handover the vacant and peaceful possession of the suit property comprising of one room and covered varandah in the front of the property bearing House No.1731, Gurudwara Road, Kotla Mubarakpur, New Delhi, as shown in the site plan Ex. PW1/1.
37.However this order shall not be executed for a period of two months from today. Parties to bear their own costs. File be consigned to Record Room after completion of necessary formalities.
Announced in the open court (Atul Krishna Agrawal)
on 21.03.2018 Administrative Civil Judgecum
Additional Rent Controllercum
Commercial Civil Judge: (South):
Saket District Courts: New Delhi