Delhi District Court
Rct Appeal No. 10/2012 vs M/S Upper India Rubber Works on 24 August, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
1. IN THE MATTER OF:
RCT Appeal No. 10/2012
Unique ID No. 0240IC0034502012
Shri Jaswant Singh
S/o Shri Chanan Singh,
Prop. of M/s. Kalgidhar Engineering Works,
Plot No. D-2, Gali No.4,
Anand Parbat Industrial Area,
New Delhi. . . . Appellant
Versus
M/s Upper India Rubber Works
through its Prop.
Shri Gurbax Singh,
Plot No. D-2, Gali No.4,
Anand Parbat Industrial Area,
New Delhi. . . . Respondent
Date of institution of appeal : 23.01.2012
Date when final arguments were heard: 03.08.12
Date of pronouncement of judgment :24.08.2012.
AND
2. IN THE MATTER OF:
RCT Appeal No. 11/2012
Unique ID No. 0240IC0052802012
M/s Upper India Rubber Works
through its Prop.
D-2, Gali No.4,
Anand Parbat Industrial Area,
New Delhi-110 005 . . . Appellant
Versus
(RCT Appeal No.10/2012 & 11/2012) (Page 1 of 19)
Shri Jaswant Singh
S/o Shri Chanan Singh,
Prop. of Kalgidhar Engineering Works,
D-2, Gali No.4,
Anand Parbat Industrial Area,
New Delhi-110 005. . . . Respondent
Date of institution of appeal : 02.02.2012.
Date when final arguments were heard: 03.08.2012
Date of pronouncement of judgment :24.08.2012.
JUDGMENT :-
By this common judgment, I shall dispose of two appeals, bearing RCT No. 10/2012 and RCT No.11/12, as both the appeals have been preferred, feeling aggrieved by the order dated 22.12.2011 passed by Shri Pritam Singh, Addl. Rent Controller (Central), Tis Hazari, Delhi.
2- Before coming to the grounds of appeals, it will be in the fitness of things to narrate the circumstances leading to the filing of the present appeals. An eviction petition under Section 14(1)(a) of the Delhi Rent Control Act (hereinafter to be referred as "DRC Act") was filed by the petitioner M/s Upper India Rubber Works (landlord) against respondent Jaswant Singh (tenant) inter alia on the allegations that a room in property bering No.D-2, Gali No.4, Anand Parbat, Industrial Area, New Delhi was let out to the respondent in the year 1990 by oral agreement. Rate of rent was Rs.3500/- per month. Respondent is a regular defaulter in making payment of rent to the petitioner from time to time and he failed to pay monthly (RCT Appeal No.10/2012 & 11/2012) (Page 2 of 19) rent of the tenanted premises at the rate of Rs.3500/- per month and also the arrears of rent of Rs.3900/- which stands unpaid upto 31-10-2003 inspite of repeated requests and demand notice. Vide legal notice dated 01.04.2005 petitioner demanded the arrears of rent of Rs.63,400/- including the arrears of Rs.3900/- stated above, for the period from 01.11.2003 to 31.03.2004, which the respondent failed to pay. The respondent has failed to comply with the legal notice. As such, eviction of the respondent from the tenanted premises was sought on the ground of non payment of rent.
3- It was further alleged that the respondent had filed a false and frivolous civil suit (bearing No.331/2003) for injunction which was disposed of vide order dated 27.01.2004 on the basis of statement of the petitioner that he will not dispossess the respondent from the tenanted premises without due process of law. Respondent had also filed a petition under Section 45 of DRC Act, wherein the petitioner had given his no objection if the respondent gets new electricity connection.
4- Eviction petition was contested by the respondent by filing written statement wherein it was stated that the petitioner is neither the owner nor landlord qua the property in dispute. The suit land falls in Khasra No.1018/342, Village Sadhura Khurd, known as Ramjas Estate, Anand Parbat Indl. Area, Delhi and same stands (RCT Appeal No.10/2012 & 11/2012) (Page 3 of 19) acquired vide Award No.100/94-95 and the Government has taken possession of the entire land measuring 718 Bighas and 14 Biswas, including the suit land, on as is where is basis, on 19.06.1998. As such, the Government has become owner of the said land. Eviction petition is bad for non joinder of necessary parties viz. Ramjas Foundation, Darya Ganj and Union of India. The respondent is a tenant and in possession of the suit premises at a monthly rent of Rs.400/- besides other charges under M/s Upper India Rubber Works through its Partner Shri Gurbux Singh. Tenancy in his favour was created vide a written agreement on 17.01.1984 but the same was in power and possession of the petitioner. He claimed to have given Rs.8000/- to the landlord as a refundable security amount and again Rs.9000/- was paid to the petitioner towards the refundable deposits. Though he has been paying rent regularly and rent upto 31.01.2005 was paid in advance but the landlord issued rent receipts upto November, 1988 only and thereafter he stopped issuing rent receipts. It was alleged that at the time of issuance of notice of demand, there was no arrears of rent. He prayed for dismissal of the eviction petition.
5- Petitioner filed replication denying the allegations of the respondent and reiterated the pleas as taken in the eviction petition.
6- In order to prove his case, petitioner examined one (RCT Appeal No.10/2012 & 11/2012) (Page 4 of 19) Parvinder Singh as PW2. Though affidavit of Gurbux Singh was filed and tendered but he did not appear for his cross examination and therefore his examination in chief could not be read in evidence. On the other hand, respondent examined himself as RW1.
7- On the basis of evidence adduced on record, learned Addl. Rent Controller vide impugned judgment came to the conclusion that the petitioner succeeded in proving the ingredient No.(i) regarding relationship of landlord and tenant between the parties and (iii) service of demand notice, but failed to to prove ingredients No.(ii) and (iv) that when the legal demand notice was issued, the arrears of legally recoverable rent was in existence and that legal demand notice was not according to actual rate of rent and as such, the respondent was not liable to comply the same within two months. As such, eviction petition was dismissed.
8- Both the parties assailed the impugned judgment by filing their respective appeals. Tenant filed appeal bearing No.10/12 whereas the landlord filed appeal bearing No.11/12. Notices of the same was issued to the respective opposite party. Trial court records was requisitioned.
9- I have heard Shri K.N. Popli, Advocate for Shri Jaswant Singh/ tenant and Shri R.N. Sharma. Advocate for (RCT Appeal No.10/2012 & 11/2012) (Page 5 of 19) M/s. Upper India Rubber Works/ landlord and have perused the record.
10- First of all, I shall take up appeal bearing No.10/2012 filed by Shri Jaswant Singh against M/s. Upper India Rubber Works.
11- It was contended by Shri K.N. Popli, Advocate for Shri Jaswant Singh that although the eviction petition was dismissed by the learned Addl. Rent Controller, but he is basically aggrieved with the finding of learned Addl. Rent Controller whereby it was held that there exists relationship of landlord and tenant between the parties. It was submitted that after the receipt of notice of the eviction petition, the appellant came to know that entire land, including the premises in dispute falls in Khasra No. 595/275/2 min., Village Sadhura Khurd, known as Ramjas Estate, Anand Parbat Industrial Area, Delhi and said land has been acquired vide Award No.10/94-95 and the Government has taken possession of the entire land including the premises in dispute on 19.06.1998. Thus, the Government has become the owner of entire land. The respondent has ceased to be the landlord of the premises in dispute qua the appellant and as such, the eviction petition is not maintainable inasmuch as DRC Act does not apply to the premises which absolutely vests and belongs to the Government in terms of Section 3(a) of DRC Act. This aspect of the matter has been completely ignored by the (RCT Appeal No.10/2012 & 11/2012) (Page 6 of 19) learned Addl. Rent Controller and as such, this finding is liable to be set-aside.
12- Rebutting the submissions of the learned Counsel for the tenant, it was submitted by the learned Counsel for the landlord that there is admission of tenant in the written statement that he was inducted as a tenant by the landlord. The tenant himself filed a suit for injunction against the landlord. He also filed a petition under Section 45 of the DRC Act, wherein he admitted the respondent to be the landlord of the suit premises and in pursuance to the direction given by learned Addl. Rent Controller, he was granted electricity connection. As such, he is estopped from challenging his title. Reliance was placed on (2006) 5 SCC 532 Bhogadi Kanababu & Ors v. Vuggina Pydamma & Others. It was further submitted that in an eviction petition filed under Section 14(1)(a) of DRC Act, landlord is not required to prove his absolute ownership. Only the relationship of landlord and tenant between the parties is to be seen which has been admitted by the tenant. In case, the DDA has become owner of the property, action can be taken by DDA against him but for that reason, the tenant is estopped from challenging the right of landlord to claim eviction on statutory grounds contemplated under the DRC Act.
13- A perusal of the record reveals that in order to substantiate his case, the respondent/ petitioner had (RCT Appeal No.10/2012 & 11/2012) (Page 7 of 19) examined Shri Parvinder Singh as PW2, whereas the respondent has examined himself in support of his defence. Shri Parvinder Singh filed his examination-in-chief by way of affidavit Ex.P2, wherein it was averred that he is one of the partners of the petitioner alongwith Shri Gurbax Singh. The premises were let out to respondent in the year, 1990 vide oral agreement. The petitioner is the owner of property and construction was raised by him and was further renovated in the year, 1990. The Respondent/ Appellant also tendered his examination-in-chief by way of affidavit Ex.RW1/A, wherein it was averred that tenancy in his favour was created on 17.01.1984 vide a written agreement. At the time of creation of tenancy, the respondent was carrying out its business in the name and style of M/s. Kalgidhar Engineering Works in partnership with Shri Tarsem Kumar. Vide dissolution deed dated 17.11.1987, the partnership was dissolved and the respondent became its sole proprietor. Due intimation was given to M/s. Upper India Rubber Works. The landlord had issued rent receipts to the respondent upto November, 1998 and thereafter stopped issuing rent receipts. During the riots in October, 1984, after the assassination of Prime Minister of India Smt. Indira Gandhi, the business premises, material and the machinery belonging to the respondent and his then landlord were heavily damaged while the respondent was not in Delhi. For claim purpose, the landlord had issued one certificate regarding damage suffered by respondent on 03.06.1992. The petitioner and (RCT Appeal No.10/2012 & 11/2012) (Page 8 of 19) his nephew Shri Parvinder Singh wanted to settle his brother-in-law in a separate factory and therefore, requested the respondent to vacate the premises in his occupation which the respondent declined. As such, on 23.11.2003, at about 11:30 AM, the petitioner alongwith others, came to the premises of respondent and wanted to forcibly evict him, thereupon a complaint was made by respondent to police station Anand Parbat and he also filed a suit for injunction, restraining the landlord and others from dispossessing him from the tenanted premises. The said suit was decreed vide order dated 27.01.2004 by the Court of Shri Sanjay Sharma, the then Civil Judge, Delhi. Since the landlord could not succeed in his illegal designs, therefore, without any just and sufficient cause, he disconnected the electricity enjoyed by the respondent. As such, a petition under Section 45 of the DRC Act was filed by the respondent for restoration of essential supply of electricity. Under the orders of the Court of Shri Gulshan Kumar, the then Addl. Rent Controller, Delhi, new electricity connection was installed in the name of respondent. However, at the time of filing of petition, there was no relationship of landlord and tenant between the parties, inasmuch as the respondent came to know that the entire land, including the premises in dispute has been acquired by the Government and the possession has been taken on "as is where is" basis. As such, petitioner ceased to be the landlord of the premises in dispute qua the respondent. A perusal of testimony of Appellant himself (RCT Appeal No.10/2012 & 11/2012) (Page 9 of 19) goes to show that according to him, he was inducted as a tenant in the suit premises by M/s. Upper India Rubber Works in the year, 1984. Although, according to the appellant, the tenancy was created by virtue of a written agreement which is in power, custody possession of Shri Gurbax Singh but the same has not been placed on record. Be that as it may be, fact remains that tenancy was created in favour of the appellant by the respondent. The rent receipts were also issued by M/s. Upper India Rubber Works to him. As per the testimony of appellant himself, respondent wanted to get the premises vacated forcibly, therefore, he filed a suit for injunction against respondent. A perusal of certified copy of the suit filed by the Appellant Ex.RW1/P2 goes to show that it was admitted by the appellant that he was a tenant under the respondent. Similarly, according to him, in order to get the premises vacated, the respondent disconnected his electricity thereupon, he filed a petition under Section 45 of the DRC Act, meaning thereby that undisputedly the respondent was the landlord qua the appellant. However, according to the appellant, now he has come to know that the area where the suit premises is situated, had been acquired by the Government and possession has been taken on "as is where is" basis and, therefore, it is alleged that now the petitioner is no more landlord of the suit premises. This submission is without any merit inasmuch as in an eviction petition filed under Section 14(1)(a) of the DRC Act, only the relationship of landlord and tenant between the parties is to (RCT Appeal No.10/2012 & 11/2012) (Page 10 of 19) be seen. Absolute ownership is not required to be proved. It is only to be seen that the landlord is more than a tenant. The tenant himself is not claiming to have become owner of the property. In Rajinder Kumar Sharma v. Leela Wati & Ors 155 (2008) DLT 383, it was held that the landlord is not supposed to prove absolute ownership as required under the Transfer of Property Act. He is required to show only that he is more than a tenant. In Ramesh Chand v. Uganti Devi 157 (2009) DLT 450, it was held that imperfectness of title of premises cannot stand in way of eviction petition. Neither tenant can be allowed to raise plea of imperfect title or title not vesting in landlord and that too when tenant paying rent to the landlord. Section 116 of Evidence Act creates estoppels against such a tenant. In Bhogadi Kanababu & ors, it was held by Hon'ble Supreme Court that in an eviction petition filed on the ground of default about payment of rent, the court needs to only satisfy whether there exists relationship of landlord and tenant between the parties and question of title of the landlord to the property in question is not relevant.
14- In view of these authoritative pronouncements, the appellant is estopped from challenging the title of the respondent/ petitioner. Even if the premises have been acquired by the Government, the Government may take action against the landlord but for that the appellant cannot dispute his title. Under the circumstances, it was rightly (RCT Appeal No.10/2012 & 11/2012) (Page 11 of 19) observed by the learned Addl. Rent Controller that there exists relationship of landlord and tenant between the parties and no interference is called for in regard to this finding. As such, the appeal bearing No.10/2012 filed by tenant is dismissed.
15- Appeal bearing No.11/2012 - has been filed by the landlord, feeling aggrieved by that part of the order whereby the learned Addl. Rent Controller observed that the rate of rent of the suit premises is Rs.400/- per month and the eviction petition was dismissed on the ground that the landlord has failed to prove that when the legal demand notice was issued, the arrears of legally recoverable rent were in existence.
16- It was contended by the learned Counsel for the landlord that earlier rent was Rs.400/- per month and security of Rs.8000/- was given. During riots in the year, 1984, the shop was burnt and he reconstructed the same. Thereafter the tenant made re-entry. The rent was increased to Rs.3,000/- and a sum of Rs.9,000/- was given as security by the tenant. The rent was thereafter increased to Rs.3,500/- per month. The respondent himself gave the kacha bills Ex.PW2/5 and Ex.PW2/6, which proves the rate of rent.
17- In this regard, it was submitted by the learned Counsel for the respondent that the tenant never vacated (RCT Appeal No.10/2012 & 11/2012) (Page 12 of 19) the premises after entering the suit premises in the year, 1984 and there was no question of re-entry in the suit premises. The rent was Rs.400/- per month. The kacha bills Ex.PW2/5 & Ex.PW2/6 do not in any manner proves that the rent was Rs.3,000/- or Rs.3,500/- per month.
18- The crucial question for consideration is what was the rate of rent inasmuch as according to the appellant, rent was Rs.3,500/- per month whereas, according to respondent, it was Rs.400/- per month. In para 14 of the eviction petition, it was alleged that the premises were let out to the respondent by virtue of an oral agreement in the year, 1990 at the rate of Rs.3,500/- per month. However, in the written-statement, it was alleged by the respondent that he was inducted as a tenant on 17.01.1984 by virtue of a written agreement @ Rs.400/- per month. A sum of Rs.8,000/- was paid to the landlord as refundable security Again a sum of Rs.9,000/- was paid towards refundable security, but the rent remained the same. The landlord used to issue rent receipt on its letter-head upto November, 1998 and thereafter stopped issuing the receipts. There is no denial of these facts in the corresponding para of the replication. In fact, it was admitted that initially, the respondent was tenant vide an written agreement, but he left the tenanted premises in 1988 and again re-entered in the year, 1990 by an oral agreement and at that time, the rent initially became Rs.3,000/- per month and thereafter, increased to Rs.3,500/- per month. The onus of proving (RCT Appeal No.10/2012 & 11/2012) (Page 13 of 19) the fact that the respondent had vacated the premises in the year, 1988 and thereafter re-entered in the year, 1990 was upon the appellant. Except for the oral testimony of the appellant, there is no other material available on record to show that the respondent re-entered the suit premises in the year, 1990. Similarly as regards the rate of rent is concerned, no documentary evidence has been led by the appellant to prove that rent of the suit premises was Rs.3,000/- per month in the year, 1990 or thereafter, it was increased to Rs.3,500/- per month. Even if the plea of the appellant that the respondent had left the suit premises in the year, 1988 and again inducted as a tenant in the year 1990 is believed, it seems highly improbable that the suit premises which earlier fetched Rs.400/- per month only would then be increased to Rs.3,000/- per month within two years. Earlier landlord used to issue rent receipts to the tenant, but absolutely, there is no explanation as to why he stopped issuing rent receipts. Furthermore, the averments are quite vague inasmuch as it is not disclosed either in the legal notice or in the eviction petition as to when the rent was increased from Rs.3,000/- to Rs.3,500/- per month.
19- The petitioner has relied upon two hand-written slips Ex.PW2/5 & Ex.PW2/6 to prove that the rent was Rs.3,500/- per month. A perusal of Ex.PW2/5 reveals that it is no where mentioned that the said slip pertains to rent of the suit premises. It is also not stated for which period (RCT Appeal No.10/2012 & 11/2012) (Page 14 of 19) i.e. year, it was prepared. Similarly, although in the slip Ex.PW2/6, at one place it is mentioned January to August, "rent", however, what was the basis for the calculation, is not clear. It is not mentioned in this slip to which year it pertains and therefore, it cannot be said whether this slip was for the rent @ Rs.3,000/- or Rs.3,500/- per month. As such, from these slips, no conclusion can be drawn as to whether the rent was Rs.3,000/- or Rs.3,500/- per month. At the costs of repetition, it may be mentioned that onus of proving the fact that rate of rent was Rs. 3,000/- or Rs.3,500/- per month, was upon the petitioner. However, no clinching evidence could be led by him in this regard. On the other hand, it is the case of respondent that he never vacated the suit premises and admittedly the rate of rent was Rs.400/- per month when he was inducted as a tenant. This finding of learned Trial Court, under the circumstances, does not suffer from any infirmity which calls for interference.
20- According to the appellant, the respondent was in arrears of rent from 01.11.2003 to 31.03.2005, as such a legal demand notice Ex.PW2/2, claiming arrears of rent was served upon the respondent which the respondent failed to pay despite service of notice of demand.
21- In this regard, it is the case of respondent that the bank drafts @ Rs.400/- per month were sent to the petitioner from time to time which the petitioner (RCT Appeal No.10/2012 & 11/2012) (Page 15 of 19) intentionally refused to receive. Therefore, since the rent was duly tendered to the petitioner, the learned Addl. Rent Controller rightly dismissed the petition.
22- A perusal of impugned judgment goes to show that learned Addl. Rent Controller came to the conclusion that the petitioner failed to show when legal demand notice was issued, the arrears of legally recoverable rent were in existence inasmuch as eight bankers' cheques Ex.PW2/R3, Ex.PW2/R5, Ex.PW2/R7, Ex.PW2/R9, Ex.PW2/R11, Ex.PW2/R13, Ex.PW2/R15, and Ex.PW2/R17 were sent for rent of 19 months. It was further observed that the legal demand notice was not according to actual rate of rent and therefore, the respondent was not required to comply with the same. As such, although, it was observed that ingredients No. 3 & 4 i.e. existence of legally recoverable arrears of rent, on the date of notice of demand; and failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of service of notice, were decided in favour of the petitioner and against the respondent, but in fact, the petition was dismissed.
23- As regard the observations of learned Addl. Rent Controller that the legal demand notice Ex.PW2/2 was not according to actual rate of rent and, therefore, respondent was not liable to comply with the same, this observation is not sustainable inasmuch as in Raj Rani v. Gian Chand (RCT Appeal No.10/2012 & 11/2012) (Page 16 of 19) 1986 Raj. L.R 284, and Life Insurance Corporation of India v. the Standard Button Agency 1972 RCJ 199, it was held that notice of demand of arrears of rent is not defective on account of wrong claim of rent or error of period. The tenant shall tender or pay the arrears which he considered to be due. The landlord can even demand the time barred rent in the notice but the liability of the tenant is to pay those arrears which are legally recoverable and not those arrears demanded in the notice. In view of these authoritative pronouncements, even if the landlord demanded arrears of rent @ Rs.3,500/- per month, whereas, according to respondent, it was Rs.400/- per month, the notice of demand on that account, itself does not become illegal and it was incumbent upon respondent to at least have tendered/deposited the rent @ Rs.400/- per month.
24- Further, although the respondent was sending various bankers' cheques from time to time @ Rs.400/- per month to the petitioner, but it is not his case that the same were got encashed by the petitioner, meaning thereby that when the legal notice of demand was sent, he was in arrears of rent. Therefore, it was incumbent upon the respondent to have paid/ tendered the rent at least @ Rs.400/- per month to the petitioner. It is not the case of respondent that after the service of legal notice of demand, the arrears were either tendered to the petitioner or he refused to receive the same. Learned Counsel for the (RCT Appeal No.10/2012 & 11/2012) (Page 17 of 19) Appellant, relied upon H.M. Doyal & Co. v. Ram Nath 1985, RLR 414 for contending that after service of notice, it is the duty of tenant to pay the arrears of rent which he thinks, is due. In Sarla Goel & Ors. v. Kishan Chand, 160 (2009) DLT 687, it was held by Hon'ble Supreme Court that when notice of demand is issued by landlord demanding arrears of rent and the tenant sent arrears of rent by money order, which is not accepted by the landlord then that itself does not absolve the tenant from his liability to deposit the rent under Section 27 of the Act. It was held that the word "may" used in Section 27 of the Act must be construed as "shall" i.e. mandatory provision and not directory.
25- In view of this judicial verdict of Hon'ble Apex Court, even if rent was tendered by drafts but since it remained unpaid the petitioner did not encashed the drafts, it was incumbent upon the respondent to have deposited the rent under Section 27 of the DRC Act, but this recourse was not adopted by him. That being so, the landlord had succeeded in proving that the respondent was in arrears of rent from 01.11.2003 to 31.03.2005 @ Rs.400/- per month. Despite service of legal notice of demand Ex.PW2/2, he failed to pay or deposit the rent. Under the circumstances, the ground under Section 14(1)(a) of DRC Act was made out. That being so, the finding of learned Addl. Rent Controller, dismissing the eviction petition, cannot be sustained and is accordingly set-aside. Since it was a case (RCT Appeal No.10/2012 & 11/2012) (Page 18 of 19) of first default, it was required to be seen as to whether the order under Section 15(1) of the DRC Act passed by the learned Addl. Rent Controller on 21.04.2006 modified to Section 15(4) of Act on 31.07.2006 by Shri B.B. Chaudhary, the then learned Addl. Rent Control Tribunal was complied with or not. The matter is, therefore, remanded back to the learned Addl. Rent Controller for considering the aspect whether this order has been complied with or not and its consequences? The appeal bearing No.11/2012 is accordingly partly allowed.
26- To sum up while the appeal bearing No.10/2012 filed by tenant is dismissed, the appeal bearing No.11/2012 is partly allowed. Parties are left to bear their own costs.
Copy of the order be placed in the appeal No.11/12 and a copy of the order be sent to the trial Court alongwith record. Parties are directed to appear before ld. Addl. Rent Controller on 29.08.2012. Appeal files be consigned to record room.
Announced in open
court on 24.08.2012 (SUNITA GUPTA)
Rent Control Tribunal:
Delhi
(RCT Appeal No.10/2012 & 11/2012) (Page 19 of 19)