Delhi District Court
Smt. Anita Raghav vs Dr. Dinesh Vashisht on 23 February, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI.
EVICTION PETITION NO. E133/09
Sh. Nem Chand Raghav (Since deceased through LRs)
1. Smt. Anita Raghav
W/o late Sh. Nem Chand Raghav
2. Sh. Brejesh Raghav
S/o late Sh. Nem Chand Raghav
3. Sh. Amit Raghav
S/o late Sh. Nem Chand Raghav
4. Sh. Hitesh Raghav
S/o late Sh. Nem Chand Raghav
5. Sh. Chetan Raghav
S/o late Sh. Nem Chand Raghav
All R/o 1786/A9, III Floor,
Govindpuri Extn. Kalkaji,
New Delhi 110019
...... Petitioners.
Versus
Dr. Dinesh Vashisht
Shop No. 1, Ground Floor
1786/A9, Govindpuri Extn.
Kalkaji, New Delhi 110019
....... Respondent.
E133/09 Page 1 of 18
Petition u/s 14(1) (a) of Delhi Rent Control Act 1958
Date of Institution of the case : 21.02.2005
Date of Judgment reserved : 18.02.2011
Date of Judgment pronounced : 23.02.2011
JUDGMENT:
1. Vide this judgment I shall dispose of an eviction petition filed by the petitioner u/s 14 (1) (a) of DRC Act against the respondent on the ground of nonpayment of rent.
2. Brief facts as stated in the petition are that petitioner is the owner and landlord of the suit premises i.e Shop No. 1, 1786/A9, Govindpuri Extension, Kalkaji, New Delhi - 110019 admeasuring 10 ft x 13 ft. and the respondent is tenant in the suit premises @ Rs. 350/ p.m. It is stated that earlier after the death of his mother, the petitioner was only a co owner of the suit premises along with his brother but by virtue of partition deed, he became the exclusive owner of the tenanted shop and is entitled to recover the rent of the tenanted shop from the respondent. It is further stated that respondent lastly paid the rent to the petitioner in the month of October, 2002 and, thereafter, the respondent is in arrears of rent since November, 2002 which he has not paid despite service of E133/09 Page 2 of 18 legal notice dated 22.11.2004. It is further stated that rent was also enhanced w.e.f. 01.01.2005 to Rs. 385/ p.m. u/s 6A of DRC Act vide the said legal notice dated 22.11.2004 which was duly served upon the respondent on 24.11.2005 and the respondent also sent a false and frivolous reply vide reply dated 14.01.2005 but failed to comply with the legal notice dated 22.11.2004. Hence, the present petition. It has been prayed that an 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 he had been tendering rent regularly to the original landlady and it was only after her demise that her sons who became coowners started harassing the respondent to vacate the suit shop and earlier also electricity connection in the demised premises was disconnected for no rhyme or reason. It is stated that the coowners of the tenanted shop refused to accept the rent without any reason when tendered and even the petitioner refused to accept the rent from October 2002 onward when the same was tendered to him. It is further stated that after receiving the legal notice dated 22.11.2004, the respondent called upon the petitioner many times to tender the rent but the petitioner refused to accept the same. Thereafter, the respondent sent his employee E133/09 Page 3 of 18 (compounder) to the residence of the petitioner on 17.01.2005 at 10 a.m. with the rent amount as demanded vide legal notice dated 22.11.2004 i.e. rent amount of Rs. 9485/ for the period 01.11.2002 to 31.12.2004 @ Rs. 350/ p.m. and for Jan 2005 @ Rs. 385/, but the petitioner refused to accept the same and as such the respondent made a valid tender of rent but the petitioner refused to accept the same and there has not been any default on the part of the respondent. It is further stated that thereafter, the respondent sent the money/enhanced rent due for the month of January, 2005 by money order to the petitioner, but the same was also not accepted by the petitioner and the respondent was constrained to deposit the same in the court. Therefore, there is no cause of action in filing the present petition and same is liable to be dismissed.
4. The petitioner has filed the replication in which averments made in the petition have been reiterated and reaffirmed and those made in the written statement have been controverted.
5. Thereafter, in order to prove his case, the petitioner examined his son and special power of attorney Sh. Brijesh Raghav as PW1 who filed his evidence by way of affidavit in which he reiterated the averments made in the petition. He has placed on record the power of attorney executed by the petitioner in his favour as Ex. PW1/1, site plan E133/09 Page 4 of 18 showing the tenanted shop as Ex. PW1/2, rent agreement dated 18.10.1985 executed by the respondent and the mother of the petitioner as Ex. PW1/3, copy of partition deed as Ex. PW1/4, copy of legal notice dated 22.11.2004 as Ex. PW1/5 and the postal receipt, courier receipt, UPC, returned envelope and POD of the courier are Ex. PW1/6 to Ex. PW1/10. He has also placed on record the reply dated 14.01.2005 sent by the respondent along with the carrying envelope as Ex. PW1/11 and Ex. PW1/12.
6. On the other hand, the respondent has examined himself as RW1 and filed his evidence by way of affidavit which is Ex. RW1/A. In the examination in chief he reiterated the averments made in the written statement filed by him. He has placed on record the postal receipt dated 04.02.2000 as Ex. RW1/1 by which a letter dated 04.02.2000 was sent to the petitioner seeking information regarding ownership of the tenanted shop, the acknowledgment card of the same is Ex. RW1/2, copy of letter dated 05.07.2000 written to G.P. Ext. Shopkeepers Association with due receipt as Ex. RW1/3, office copy of police complaint dated 05.07.2000 against the petitioner and his brothers with due receipt as Ex. RW1/4 , office copy of police complaint dated 11.06.2003 with due receipt as Ex. RW1/5, money order E133/09 Page 5 of 18 acknowledgment card dates 09.02.2000 as Ex. RW1/6, copy of money order for March 2000 is Ex. RW1/7 and acknowledgment card for same is Ex. RW1/8, the copy of deposit receipt of rent for the period 01.11.2002 to 30.04.2003 amounting to Rs. 2100/ as Ex. RW1/9, copy of deposit receipt of rent from May 2003 to October, 2003 amounting to Rs. 2100/ as Ex. RW1/10, the copy of deposit receipt of rent for November, 2003 to December 2004 amounting to Rs. 4900/ is Ex. RW1/11 and copy of deposit receipt from January 2005 to February 2005 amounting to Rs. 770/ is Ex. RW1/14. The respondent has also placed on record copy of letter dated 04.02.2000 sent to the petitioner which is mark R1, copy of money order dated 04.02.2000 is mark R3 and mark R4, the copy of money order dated 19.01.2005 is mark R6, copy of money order by which enhanced rent for the money of January, 2005 was sent to the petitioner which was refused is mark R7 and copy of money order dated 01.02.2005 by which rent for the month of February, 05 was sent is mark R8.
7. It is pertinent here to mention that during the pendency of the case, the petitioner expired and an application u/o 22 rule 3 CPC was moved for impleading the LRs of petitioner which was allowed vide order dated 30.10.2010 and the LRs of deceased petitioner were E133/09 Page 6 of 18 substituted in place of the petitioner as reflected in the title of the case.
8. I have heard the Ld. counsel for the parties and perused the entire material available on record carefully.
9. 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 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.
10. The Ld. Counsel for the respondent has argued that after demise of Smt. Saraswati Devi who was the original owner/landlady of the suit premises, her sons became the coowners of the suit shop and the respondent was not informed about the ownership of the suit premises. She has further argued that the petitioner is not the exclusive owner of the suit premises and, therefore, the legal notice dated 22.11.2004 sent E133/09 Page 7 of 18 by the petitioner demanding arrears of rent is itself defective as petitioner cannot claim the arrears of rent since November, 2002 because by virtue of partition deed, the petitioner became the absolute owner w.e.f. February, 2004.
11. Admittedly, Smt. Saraswati Devi was the original owner/landlady of the suit premises and petitioner is one of her sons. As such, there is no dispute that petitioner is one of the coowner of the suit premises even before partition deed and it is a settled law that even one coowner can maintain the eviction petition. Reliance may be placed upon in an authority AIR 2006 SC 1471.
12. Even otherwise, the respondent has categorically admitted in his crossexamination that after the death of the mother of the petitioner, he used to give rent to petitioner or to either of his two brothers. He further admitted that he paid the monthly rent of the tenanted premises to the petitioner for the period May, 1998 to January, 2000. He further categorically admitted that for the period February, 2000 to October, 2002 he had paid monthly rent to the petitioner. As such, when the respondent has been paying the rent to the petitioner, then the respondent cannot be heard saying that petitioner is not entitled to recover the rent from November, 2002 as he became the absolute owner E133/09 Page 8 of 18 of the suit premises by virtue of partition deed which became effective from February, 2004. Therefore, there is no merit in the contention of the Ld. Counsel for the respondent that legal notice dated 22.11.2004 demanding the arrears of rent w.e.f. November, 2002 is defective or that there exist no relationship of landlord and tenant between the parties.
13. There is no dispute so far the rate of rent of the suit premises is concerned. It is also not in dispute that the respondent is in arrears of rent since November, 2002. Now, the respondent has taken a plea in the written statement that he had been tendering the rent to the petitioner, but it was the petitioner who was not accepting the rent from October, 2002 onwards and there has been no default on the part of the respondent. It is also stated by the respondent that after receipt of the legal notice dated 22.11.2004, he sent his employee (compounder) to the residence of the petitioner on 17.01.2005 at 10 a.m. with the rent amount as demanded vide legal notice dated 22.11.2004 i.e. rent amount of Rs. 9485/ for the period 01.11.2002 to 31.12.2004 @ Rs. 350/ p.m. and for Jan 2005 @ Rs. 385/, but the petitioner refused to accept the same. On the other hand, the petitioner has disputed that the respondent ever tendered the rent in compliance of the legal notice dated 22.11.2004.
14. In the crossexamination of PW1 who is son of the petitioner, a E133/09 Page 9 of 18 question was put to him by the Ld. Counsel for the respondent that whether he was present with his father on 17th January, 2005 at 10 a.m, when Sh. Vikram compounder of the respondent tendered Rs. 9485/ to his father and PW1 categorically replied that no such thing happened and the compounder never came. No single suggestion has been given to PW1 by the Ld. Counsel for the respondent that compounder Sh. Vikram had tendered the rent of Rs. 9485/ to his father on 17.01.2005. Even the respondent could not prove that rentals as demanded vide legal notice dated 22.11.2004 Ex. PW1/5 were tendered by him through his compounder namely Sh. Vikram and it was the petitioner who refused to accept the same and, therefore, there is no default on the part of the respondent.
15. In the crossexamination, the respondent has stated that he does not remember the date when he sent his compounder but he was sent in the morning. He further categorically stated that he cannot give the address of his compounder Vikram whom he sent to tender the rent. Even he could not file any document to show he has a compounder by the name of Vikram. The respondent has not examined the said compounder namely Vikram to prove this fact that the said compounder went to the residence of the petitioner to tender the rent as demanded E133/09 Page 10 of 18 vide legal notice dated 22.11.2004, but the petitioner refused to accept the same.
16. In view of aforesaid statement of the respondent in his cross examination and nonexamination of the compounder whom the respondent had allegedly sent to the petitioner for tendering the rent, the plea of the respondent that rentals as demanded vide legal notice dated 22.11.2004 Ex. PW1/5 were tendered through his compounder, but the petitioner refused to accept the same, is not proved.
17. It is not in dispute that the respondent is in arrears of rent since November, 2002 and vide legal notice dated 22.11.2004 Ex. PW1/5, the petitioner has demanded the entire arrears of rent w.e.f. November, 2002 @ Rs. 350/ p.m. and also enhanced the rent by 10% to Rs. 385/ p.m. w.e.f. 01.01.2005. The legal notice dated 22.11.2004 Ex. PW1/5 was also duly served upon the respondent and it was also replied by the respondent vide reply dated 14.01.2005 Ex. PW1/11. In the said reply Ex. PW1/11, the respondent has not disputed that he is in arrears of rent since November, 2002 but it was stated that nonpayment of rent for the aforesaid period was not intentional but circumstantial as some proof was required to show that petitioner is exclusive owner of the suit premises.
E133/09 Page 11 of 18
18. As such, in view of the reply dated 14.01.2005 Ex. PW1/11 it emerges out that the respondent did not pay the rentals since November, 2002 as no document of ownership of the petitioner over the suit premises was supplied to the respondent. But, as already discussed herein above that respondent has admitted in his crossexamination that he was paying the rentals of the tenanted shop to the petitioner and petitioner was one of the coowner, the plea of the respondent in the reply Ex. PW1/11 that he was not supplied the ownership document of the suit premises, is not tenable.
19. Although, in his evidence the respondent has stated that when the legal heirs refused to accept the rent, he was constrained to send the accumulated rent amounting to Rs. 7350/ for the period of May 1998 to January, 2000 vide money order dated 04.02.2000 to all the three sons of demised landlady and money order acknowledgment card dated 09.02.2000 is Ex. RW1/6 and copy of money order for March 2000 is Ex. RW1/7 and acknowledgment card for same is Ex. RW1/8. In the crossexamination, the respondent has referred to mark R6 which was sent after the receipt of notice dated 22.11.2004 and he categorically admitted that he has only sent Rs. 2100/ vide mark R6. He also categorically admitted that he has not sent any money order to the E133/09 Page 12 of 18 petitioner after the receipt of legal notice dated 22.11.2004 apart from mark R6.
20. As such, in pursuance to the legal notice dated 22.11.2004 Ex. PW1/5, the respondent has sent a money order vide mark R6 for a sum of Rs. 2100/ . Now, it is not in dispute that the respondent is in arrears of rent since November, 2002 @ Rs.350/ p.m. to date of legal notice dated 22.11.2004 for 25 months. The respondent has also admitted in his crossexamination that in the legal notice dated 22.11.2004, the demand was made with respect of arrears of rent for 25 months.
21. In view of above, even if after the service of legal notice dated 22.11.2004 Ex. PW1/5, the respondent has sent the rent through money order vide mark R6 for Rs. 2100/, then also the same cannot be said to be complete tender as demanded vide legal notice Ex. PW1/5. There is no dispute so far the rate of rent of the suit premises to be Rs. 350/ p.m. and further that the respondent is in arrears of rent w.e.f. November, 2002 is concerned. As such, the rent w.e.f. November, 2002 to 22.11.2004 @ Rs. 350/ p.m. was due which comes to Rs. 8750/. As such, the rent sent by money order for Rs. 2100/ was not complete tender. Even otherwise also, if the petitioner refused to accept the rent tendered by the respondent as alleged by him, the respondent was E133/09 Page 13 of 18 required to deposit the rent in the court u/s 27 of DRC Act. It has been held by the Hon'ble Supreme Court of India in Sarla Goel Vs. Kishan Chand 2009 RLR 369 (SC) that, "If a tenant contends that a landlord refuses to take rent then the only option open to him is to deposit the rent in Court u/s 27 of the Act, if he wants to avail the beneficial provision of the Act. The provision is mandatory. If there is bonafide dispute about entitlement of landlord then he may send rent to controller by money order. On Such deposit Controller has to notify landlord to admit or deny the reasons given by the tenant for such deposit. If tenant's allegations are found to be false then he can be punished. Though S. 27 (1) uses the word 'may', the provision is mandatory and tenant must comply if he seeks aid of beneficial provisions of the Act. If tenant does not follow prescribed procedure, he cannot seek protection of the Act as per Atma Ram's case (2005.7, SCC.211). The beneficial provisions of the Act has been made for the benefit of landlord and he cannot be deprived of it."
22. The respondent has not deposited the rentals within two months from the date of service of legal notice dated 22.11.2004 EX. PW1/5 u/s 27 of DRC Act. A question was put to the respondent in his crossexamination that he has not filed the petition for deposit of rent E133/09 Page 14 of 18 before the Rent Controller of the entire arrears of 25 months within 2 months of the receipt of legal notice dated 22.11.2004. The respondent did not reply the said question and only stated that Mr. Nem Chand as well as his two brothers used to take rent so when he sent the money order knowing if the two brother may also ask/claim from him as he was paying earlier, even he approached for cash also.
23. Now, even if this apprehension of the respondent that he sent the money order to all the brothers because the other two brothers might claim the rent, is taken into consideration, the same is unfounded because it has already come on record that the respondent has paid the rentals to the petitioner not only for the period 1998 to 2000, but also for the period February, 2000 to October, 2002. Further, the respondent has admitted in his crossexamination that whenever rent he has deposited in the court, he has only impleaded petitioner and not his brothers. As such, when the respondent has not been impleading the other two brother of the petitioner in the DR application filed by him for deposit the rent in the court, the apprehension of the respondent that other two brothers may claim the rent is unfounded. Even it is not the case of the respondent that other two brothers of the petitioner have claimed the rentals of the suit premises from the respondent or they have asked the E133/09 Page 15 of 18 respondent not to pay the rent to the petitioner as they are also co owners of the suit premises.
24. The Ld. Counsel for the respondent has argued that the petitioner has not appeared in the witness box and he has examined his son and attorney Sh. Brijesh as PW1 and his evidence cannot be looked into. She has further argued that SPA has been executed by the petitioner in favour of PW1 on 13.02.2007 and on the same date, the evidence by way of affidavit of PW1 was filed, and, therefore, facts of the case were not within his personal knowledge. She has relied upon the authority titled as Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors. AIR 2005 Supreme Court 439.
25. However, I do not find any merit in this argument of the Ld. Counsel for the respondent. The PW1 who is son of the petitioner has categorically stated in his evidence by way of affidavit that he is son of the petitioner and is conversant with the fact and circumstances of the case as he was most of the times was present along with the petitioner whenever the petitioner interacted with the respondent. No single suggestion has been given by the Ld. Counsel for the respondent to PW1 in his crossexamination that he is not aware of the facts of the case or that he is not conversant with the facts and circumstances of the E133/09 Page 16 of 18 case. There is also nothing in the crossexamination of PW1 that he was deposing the facts which are not in his personal knowledge. Therefore, it cannot be said that PW1 is not a competent witness and cannot depose on behalf of the petitioner.
26. Moreover, it has been held in Sharifuddin Vs. Mehrun Nisa & Ors, 148 (2008) DLT 154 that, "Witness AW1 deposed as per his personal knowledge being family member of petitioner and residing with him - This evidence could not be rejected merely because petitioner did not appear as his own witness". It has been further held in Nand Lal Vs. Mundras Devi, 147 (2008) DLT 749 that, "Son of landlady deposed that she was not keeping good health - It was not necessary that landlady should have appeared as her own witness as person who has personal knowledge of facts could appear as a witness on behalf of landlady."
12. In view of aforesaid discussions, it has been established that the respondent has not paid or tendered the rent as demanded vide legal notice dated 22.11.2004 Ex. PW1/5 within two months from its service. Therefore, 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.
13. In the present case, orders u/s 15 (1) of DRC Act have been passed E133/09 Page 17 of 18 by Ld. Predecessor of this court vide order dated 27.07.2005 by which the respondent was directed to deposit the entire arrears of rent w.e.f. November, 2002 to July, 2005@ Rs.350/ p.m. and w.e.f. January, 2005 @ Rs. 385/ p.m. subject to adjustment of amount deposited in other court and entire arrears upto July, 2005 be made cleared within 30 days . The respondent was further directed to continue to deposit the future rent from August, 2005 at the same rate on or before 15th day of each succeeding English Calender month.
14. As the grounds u/s 14 (1) (a) of DRC Act is held to be successful and the respondent has been held first defaulter and in case of first defaulter statutory protection u/s 14 (2) of DRC Act is available to the respondent, let Nazir report be called vide separate miscellaneous file for 07.04.2011 whether the respondent has complied the orders u/s 15 (1) of DRC Act passed by the Ld. Predecessor of this Court on 27.07.2005 for considering the grant of benefit u/s Section 14 (2) of DRC Act to the respondent being the case of first default.
Present file be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal)
on 23rd February, 2011 CCJ/ARC/ACJ (South), New Delhi
E133/09 Page 18 of 18
E133/09
23.02.2011
Present:
Vide my separate judgment dictated and announced in the open court, present petition u/s 14 (1) (a) of DRC Act is held to be successful.
Let Nazir report be called vide separate miscellaneous file for 07.04.2011 whether the respondent has complied the orders u/s 15 (1) of DRC Act passed by the Ld. Predecessor of this Court on 27.07.2005 for considering the grant of benefit u/s Section 14 (2) of DRC Act to the respondent being the case of first default.
Present file be consigned to Record Room.
(B.R. Bansal) CCJ/ARC/ACJ (South), New Delhi 23.02.2011 E133/09 Page 19 of 18