Delhi District Court
Smt. Ranjit Kaur vs Mr. Gulzari Mal Makan on 7 September, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25955/2016
S. Daljeet Singh (Since deceased)
(Through his L.Rs)
1. Smt. Ranjit Kaur
W/o Late Sh. Daljeet Singh,
R/o 14/8, Ashok Nagar,
New Delhi-110018.
2. Smt. Jasmine Kaur
W/o Sh. Angad Singh
R/o 10A/13, East Patel Nagar,
New Delhi.
3. Smt. Pavneet Kaur
W/o Sh. Tavneet Singh
R/o 14/8, Ashok Nagar,
New Delhi-110018.
4. Sh. Manikaran Singh Puri
S/o Late Sh. Daljeet Singh
R/o 14/8, Ashok Nagar,
New Delhi-110018.
5. Sh. Jujar Singh
S/o Late Sh. Daljeet Singh
R/o 14/8, Ashok Nagar,
New Delhi-110018. ....Petitioner
VERSUS
1. Mr. Gulzari Mal Makan
S/o Sh. Avtar Singh,
R/o J-114, First Floor,
Rajouri Garden,
New Delhi-110027. .... Respondent No. 1
2. Mr. Bunty (Deleted)
M/s Mescos
Shop No. 10, New Market,
ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 1 / 39
Tilak Nagar,
New Delhi-110018. ... Respondent No. 2
Date of Filing : 22.05.2012
Date of Judgment : 07.09.2019
JUDGMENT
1. Brief facts of the present case are that on 22.05.2012, the petitioner filed a petition Under Section 14 (1) (a),(b),(j) & (k) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') praying to this court to pass an order for eviction in favour of the petitioner and against the respondent in respect of window showcase towards Gali side of shop no. 10 (now claimed by respondent as shop no. 10-B), New Market, Tilak Nagar, New Delhi-110018, more specifically shown in green and red colours in the site plan attached with the petition. Petitioner further prays that respondent be directed to remove the unauthorised encroachment of 2.5 ft. made on MCD Road, more specifically shown in red colour in the site plan attached with the petition and restore the tenanted premises to its original shape.
2. The case of the petitioner is that the respondent no. 1 Sh. Gulzari Mal Makan was given window showcase towards gali side of Shop No. 10, New Market, Tilak Nagar, New Delhi
-110018 for the purposes of running a shop by the father of the petitioner namely Sardar Inderpal Singh at monthly rent which was revised to Rs. 2500/- w.e.f. 01.01.2007. That the tenancy was oral.
It is further averred by the petitioner that Sardar Inderpal Singh gifted Shop No. 10, New Market, Tilak Nagar, New Delhi-
ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 2 / 39110018 to his son i.e. Sardar Daljeet Singh/ petitioner by way of Gift Deed dated 02.03.2007. That the respondent no. 1 has been a defaulter in payment of rent of the tenanted premises to the father of the petitioner prior to 02.03.2007 and the respondent no. 1 malafidely with ulterior motive deposited rent of the tenanted premises at a lower rate in the court under section 27 of D.R.C. Act. That the father of the petitioner received summons of that case from the Ld. ARC, Delhi and he appeared and informed the Court that he was no longer landlord of the respondent no. 1 and requested the respondent no. 1 to tender/ pay the rent of the tenanted premises to his son S. Daljeet Singh. That thereupon the respondent no. 1 and the petitioner had a sitting in first week of April, 2008 and it was decided and agreed mutually and orally in the presence of 2-3 respectable persons of the locality that the rate of rent of the tenanted premises would be Rs. 3500/- per month and the respondent agreed and paid Rs. 3500/- as rent of the said tenanted premises for the month of April, 2008. That the respondent no. 1 failed to pay rent @ Rs. 3500/- per month of the tenanted premises from May, 2008 onwards to the petitioner.
It is further averred by the petitioner that he came to know in the month of January, 2012 that the respondent no. 1 has sub-let, assigned or parted with possession of the tenanted premises to one Sh. Bunty for a lump-sum amount or otherwise without his knowledge, consent or written permission. That on 20.08.2012, the petitioner came to know through some reliable persons that Sh. Bunty has abandoned the tenanted premises and the respondent no. 1 has again sub-let, assigned or parted with possession of the tenanted premises in the first week of ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 3 / 39 August, 2012 to Sh. Harpal Singh Veer and Sh. Taran Singh for a valuable consideration or otherwise without the knowledge or permission or written consent of the petitioner. That Sh. Harpal Singh Veer and Sh. Taran Singh i.e. respondents no. 2 & 3 are presently in the use and occupation of the tenanted premises. That there exists no shop under the number 10-B, New Market, Tilak Nagar, under the landlordship/ownership of the petitioner.
It is pertinent to mention that in the present petition it is inter-alia alleged that respondent no. 2 Sh. Bunty was sublet the tenanted premises. But later on, petitioner filed an amended petition inter-alia stating that Sh. Bunty abandoned tenanted premises but petitioner sub-let tenanted premises to Sh. Harpal Singh and Sh. Taran Singh. These two alleged sub-tenants were impleaded but this prayer was declined and respondent no. 2 Sh. Bunty was, now deleted from the array of the respondents and Sh. Harpal Singh and Sh. Taran Singh were not impleaded as respondents.
It is also averred that the respondents have made unauthorised and illegal additions/alterations by extending the size of the said window showcase upto 2.5 ft. and fixed the iron shutter thereon unlawfully and illegally encroached on the MCD Road, more specifically shown in green and red colours in the site plan.
It is further averred by the petitioner that the respondent no. 1 has failed to tender/pay the arrears of rent @ Rs. 3500/- per month excluding electricity and water charges w.e.f. 01.05.2008. That the petitioner has claimed only arrears of rent for three years only amounting to Rs. 1,26,000/- and the respondents have jointly and severally failed to pay the same to the petitioner despite service of demand notice dated ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 4 / 39 06.03.2012.
Lastly, it is prayed by the petitioner that an eviction order may be passed in favour of the petitioner and against the respondent.
3. On the other hand, Written Statement was filed by the respondent No.1 Sh. Gulzari Mal Makan in response to the petition filed by the petitioner U/S 14 (1) (a),(b),(j) & (k) of the DRC Act, praying to the court to dismiss the present petition with costs.
In his written statement, the respondent No.1 has inter- alia stated that he was let out Shop forming part of premises No. 10, New Market, Tilak Nagar, New Delhi-110018 for the purpose of a shop by the father of petitioner namely Sardar Inderpal Singh at monthly rent of Rs. 450/- per month. That Sardar Inderpal Singh had rented the aforementioned property to respondent no. 1 w.e.f. 01.10.1980 at a monthly rent of Rs. 450/- vide duly executed rent note dated 01.11.1980. That the respondent no. 1 does not know any person by the name of Sh. Bunty/ respondent no. 2.
It is also contended by the respondent No. 1 that there is no relationship of landlord and tenant between the petitioner and respondent no. 1. That the petitioner has averred that he had filed an earlier petitioner which was withdrawn. That having withdrawn the earlier petition, the present petition U/Sec. 14 (1)
(b),(j) & (k) of the DRC Act is not maintainable. That the present rate of rent is Rs. 1500/- per month excluding electricity and water charges.
It is further contended that the petitioner never approached respondent no. 1 as a landlord. That the petitioner ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 5 / 39 vide his legal demand notice dated 06.03.2012 informed about alleged Gift. However, no Gift Deed was supplied or shown. That even Sardar Inderpal Singh/landlord never informed respondent no. 1 about alleged gift in favour of respondent no. 1. That the said Gift Deed is illegal, forged and fabricated. That the notice dated 06.03.2012 sent on behalf of petitioner was duly replied by respondent no. 1 vide reply dated 03.04.2012. That Rs. 3,500/- per month was never the rate of rent of the tenanted premises. That the tenanted premises, since the very inception of tenancy till date, is being used exclusively by respondent no. 1 only. That the site plan filed by the petitioner is fabricated and wrong.
It is further contended by the respondent no. 1 that the tenanted premises is in the same condition as was let out to respondent no. 1 by its original landlord Sardar Inderpal Singh in year 1980. That the deposit of rent U/Sec. 27 D.R.C. Act was neither malafide nor lower. That the rent was deposited as per law. That the respondent no. 1 has been regularly tendering rent to Sardar Inderpal Singh, the landlord. That the respondent no. 1 was tendering the rent of the tenanted premises to his original landlord Sardar Inderpal Singh regularly but the same was refused by him without assigning any reason. Infact, the rent was tendered through Money Orders.
It is further submitted that taking abundant precaution, after receipt of legal notice dated 06.03.2012 sent on behalf of the petitioner, respondent no. 1 tendered legally recoverable rent along with interest @ 15% per annum amounting to Rs. 83,419/- w.e.f. 01.04.2008 till 30.04.2012 by way of cheque No. 008441 dated 03.04.2012 for Rs. 83,419/- in favour of petitioner, which was enclosed along with reply dated ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 6 / 39 03.04.2012 of respondent No. 1 sent through speed post. That the said reply dated 03.04.2012 and enclosed original cheque have been received/ served upon the petitioner and his counsel. That the original cheque no. 008441 dated 03.04.2012 for Rs. 83,419/- in favour of petitioner drawn on Punjab & Sind Bank, 43-44, New Market, Tilak Nagar, New Delhi-110018 is in power and possession of the petitioner. That the petitioner with malafide intentions did not present the same for encashment.
Lastly, it is prayed that the present petition may be dismissed with costs.
4. Record reveals that rejoinder has also been filed by the petitioner to the written statement filed by the respondent No.1. The petitioner has denied all the allegations levelled by the respondent No.1 and reiterated and reasserted all the facts as stated in the petition.
5. Thereafter, the matter was fixed for petitioners' evidence. The petitioner examined himself as PW-1. PW-1 tendered his evidence, relied upon various documents and was cross examined at length. Thereafter, petitioners' evidence was closed. No other person was examined on the side of petitioner.
On the other hand, respondent No. 1 Sh. Gulzari Mal Makan examined himself as RW-1 being only witness. RW-1 tendered his evidence and relied upon various documents and was cross examined at length. Thereafter, respondent's evidence was closed.
6. I have heard the arguments at length advanced by Ld. Counsels for both the parties and also gone through the entire ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 7 / 39 record and case law relied upon. I have also carefully gone through the testimonies, documents and material on record.
Law on Sec. 14(1) (a) D.R.C. Act:-
7. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"(a) that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
As such, the following are the ingredients of section 14(1) proviso (a) :-
(i) There should be a relationship of landlord and tenant between the parties.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the tenant given by ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 8 / 39 the landlord.
8. Let us discuss the ingredients of Sec. 14(1)(a) D.R.C. Act.
(i). RELATIONSHIP OF LANDLORD AND TENANT:-
9. Perusal of record shows that the petitioner has claimed to be landlord and owner of the tenanted premises on the ground of Gift Deed executed by his father S. Inderpal Singh, who was the previous landlord and owner of the tenanted premises.
On the contrary, the respondent no. 1 Sh. Gulzari Mal Makan has admitted the landlordship and ownership of the father of petitioner S. Inderpal Singh but disputed the landlordship and ownership of the petitioner on the ground that he was not informed about the change of ownership and landlordship by the father of the petitioner or anyone else and he came to know about such change only when he received legal demand notice issued by the petitioner. The second ground of the respondent no. 1 is that Gift Deed executed by the father of petitioner is invalid.
I have carefully perused the record and testimonies of all the witnesses.
In my considered view, all the pleas of the respondent no. 1 are without any substance as it is well settled law that the tenant has no right to challenge the testaments of the landlord such as, Will, Gift deed, partition etc. It is the prerogative of legal heirs and the tenant has no locus standi.
In the case titled as Sri Ram Pasricha Vs. Jagan Nath & Ors 1976 AIR 2335, the Hon'ble Apex Court observed :-
"the relationship between the parties being that of landlord and tenant,only the landlord ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 9 / 39 could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord Under section 116 of the Indian Evidence Act. The tenant can not deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant question of title to the leased property is irrelevant."
Furthermore, in the case titled as Subhash Jain vs. Ravi Sehgal in RC Rev. No. 292/2013, the Hon'ble High Court of Delhi observed as under :-
"The other objection of the petitioner is also without any force that the sale deed dated 29th March, 1993 is a sham document. The petitioner cannot object the history of ownership of the suit property in view of the provisions of Section 116 of the Indian Evidence Act, as the tenant has no right to challenge the ownership of the landlord as he has not a contender to the suit property."
In the case of Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 and Shanti Sharma vs. Ved Prabha, 1987 RLR 526 SC, wherein it was held that it is not the concern of the tenant as to how the landlord acquired the property.
In the case of Bharat Bhushan Vij vs. Arti Techchandani, 2008 (153) DLT 247 ; it was held as under :
"4. The concept of ownership in a landlord- tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 10 / 39 supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner."
In view of the law laid down by the Hon'ble Apex Court and Hon'ble High Court of Delhi, the respondent has no right to dispute the title or ownership or Will etc. of the landlord.
In the present case, the petitioner has placed on record Registered Gift Deed dated 02.03.2007 Ex. PW-1/2.
As far as contention of the respondent no. 1 in respect of lack of knowledge regarding change of ownership is concerned, in my considered view, it also does not have any substance as even if it is assumed for the sake of arguments that respondent no. 1 came to know about the change of ownership only when he received the legal demand notice issued by the petitioner, he certainly came to know about the change of ownership after receiving such notice. As such, landlordship is indirectly admitted by the respondent no. 1 after receiving legal demand ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 11 / 39 notice as the defence of the respondent No. 1 was that he was not aware of the change of the ownership. Consequently, the defence of the respondent no. 1 gets vanished as later on, he became aware of the fact of change of ownership and landlordship. Moreover, respondent no. 1 Sh. Gulzari Mal Makan has claimed to have sent the cheque to the petitioner against the arrears of rent. As such, the respondent no. 1 has himself impliedly admitted the landlordship of the petitioner qua tenanted premises and during the cross examination also, respondent no. 1/ RW-1 has deposed that he sent cheque towards rent qua tenanted premises in favour of S. Daljeet Singh and the copy of the cheque is Ex. RW-1/P-1.
As such, perusal of the record shows that there exists a relationship of landlord and tenant between petitioner and respondent no. 1.
(ii). There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the tenant given by the landlord:-
Service of Legal Demand Notice:-
10. Perusal of record shows that the legal demand notice dated 06.03.2012 Ex. PW-1/4 is claimed to have been served upon the respondent No. 1 Sh. Gulzari Mal Makan.
On the other hand, the respondent No. 1 has not disputed the service of such legal demand notice dated 06.03.2012 Ex. PW-1/4. Moreover, the respondent no. 1 Sh. Gulzari Mal Makan has claimed to have given reply thereto.
As such, service of legal demand notice as provided U/Sec. 14(1)(a) of D.R.C. Act is proved.
ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 12 / 39(iii). NON PAYMENT OF RENT:
11. Perusal of record shows that the petitioner has claimed that rent is due w.e.f. May, 2008 @ Rs. 3500/- per month.
On the other hand, the respondent has claimed that the present rate of rent is Rs. 1500/- p.m. and not Rs. 3500/- as claimed by the petitioner. That the respondent no. 1 has regularly paid the rent in favour of petitioner. Even money orders were sent to the father of petitioner for the period March, 2008 to March, 2012 but the same were refused by the father of petitioner without assigning reasons.
12. The second contention of the respondent is that in compliance with the legal demand notice dated 06.03.2012, he sent rent for the period w.e.f. 01.04.2008 to 30.04.2012 with simple interest @ 15% to the petitioner by way of cheque but the same was not encashed by the petitioner and the cheque is still in the possession of the petitioner.
In my considered view, it is not sufficient to pay or tender or deposit the rent with the petitioner/landlord. It should also be entire legally recoverable arrears of rent. Moreover, the petitioner has denied to have received such reply to the legal demand notice or cheque as claimed by the respondent no. 1. As such, the onus is on the respondent no. 1 to prove the service of such reply along with the cheque on the petitioner.
In the present case, the respondent No. 1 has claimed to have sent Rs. 83,419/- for 49 months @ Rs. 1500/- p.m. along with simple interest @ 15% and not @ Rs. 3500/- p.m. as claimed by the petitioner.
Now, the question before the court is whether the rate of rent was Rs. 1500/- as claimed by the respondent no. 1 or Rs.
ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 13 / 393500/- as claimed by the petitioner. But, before answering that question, the court has to decide whether such reply and cheque were received by the petitioner or not.
I have carefully scrutinized the entire record as well as the testimonies on record.
Perusal of record shows that respondent no. 1 has placed on record copy of reply dated 03.04.2012 along with the cheque no. 008441 dated 03.04.2012 for a sum of Rs. 83419/- marked as Mark-A. Perusal of record shows that the respondent has also placed on record postal receipt of the speed post Ex. RW-1/10 whereby the reply along with the cheque was sent to the petitioner.
In case titled as Gopi Chand Gupta (Dead) By L.Rs vs M/S. Jain Plastic Industry decided on 30 April, 2002 in Appeal (civil) 3199 of 2002; it was observed by the Hon'ble Apex Court that:-
"Having considered the argument of the parties and the provision of law applicable, we are of the opinion that the High Court fell in error in coming to the conclusion thatthe mere posting of a cheque without there being any material to show that the said posting of the cheque was with an intention of clearing the arrears of rent, would suffice to hold that the tenant had fulfilled his legal obligation of tendering the rent. This Court in the case of M.K.Mukunthan vs.M.Pasupathi (2001 (6) SCC 13) has held that mere fact that the tenant had sent a cheque towards the rent by post would not by itself suffice to hold that the tender in question was legal. In the said judgment, this Court held that the Court will have to take surrounding circumstances to find out whether such postage of cheque was genuine and with an intention of paying the rent due. In the said case, taking into consideration the facts and circumstances of the case, this Court had held the fact that the tenant had posted the cheque to the landlord which was returned back to the tenant with an endorsement "addressee not found" by itself was not sufficient to hold the tender legal because of the fact that the posting of cheque to the landlord was not ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 14 / 39 in the normal course. Applying the principles laid down in the above case to the facts of the case in hand, we notice that the Rent Control Court as also the Appellate Tribunal had taken into consideration the fact that there was no agreement between the parties nor was there any practice to tender the rent by way of cheque or at any time earlier the rent was sent by post. The tenant had never earlier tendered the rent by way of cheque, on the contrary, the rent was either being paid in cash or by way of pay order or demand draft. The said fora had also taken into consideration the fact that if at all the tenant had any intention of clearing the rental dues, he could have deposited the same under Section 27 of the Act which was not done. Thus taking into consideration the overall facts and the conduct of the tenant, the Rent Control Court and the Appellate Tribunal had come to the conclusion that thetender was not a legal tender. In such circumstances, in our opinion, the High Court was in error in merely accepting the fact that the tenant had posted the cheque towards the arrears of rent and holding such issuance of a cheque by itself would amount to a legal tender. In our opinion also, the tender made by the respondent- tenant in this case does not show that the same was done with an intention of clearing the rental due, but on the contrary, we are satisfied that it was only an attempt to create a piece of evidence to show that he had actually tendered the rent as contemplated by law. For the said reason, we are of the opinion that the tender of rent made by the respondent-tenant in this case by posting the cheque to the address of the landlord at Calcutta would not amount to a legal tender in view of the facts and circumstances of this case."
Further, in another case titled as H.M. Doyal Co. vs Ram Nath Chitkara And Ors. decided on 25 February, 1985, AIR 1986 Delhi 101, it was observed by Hon'ble High Court of Delhi as under:-
"(14) Section 3(l)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 was as under :
"3. Restrictions on eviction-(l) Subject to any order passed under sub-section (3) on suit shall,without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds : (a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 15 / 39 notice of demand". It is similar to Section 14(1)(a) of the Delhi Rent Control Act, 1958. In Ram Babu v. Pershadi Lal the tenant sent the rent by money order but it was refused by the landlord. Subsequently the landlord served a notice upon the tenant demanding arrears of rent. No payment was made by the tenant. The landlord filed the suit for eviction on the ground of arrears of rent etc. against the tenant. The Division Bench observed as under:
"The words "in arrears of rent" refer to an outstanding liability in respect of rent, and it is plain that if rent for more than three months has not in fact been paid, it must be held that this rent is in arrears. In our judgment, it is immaterial that the tenant has attempted to pay the rent but the rent has not been accepted by the landlord. An unsuccessful attempt on the part of the tenant to pay the rent cannot lead to the conclusion that the rent has been paid and is not in arrears, even if the failure of the attempt can be attributed to the landlord. The statute is concerned with the simple fact that there is an outstanding liability respecting rent, whatever the reason for it may be. In view of the fact that a notice was served by the plaintiff upon the defendant demanding the arrears of rent and there being no dispute that no payment was attempted by the defendant after service of such notice, we must hold that the plaintiff became entitled to sue the defendant for ejectment by virtueof the provisions of Section 3(l)(a)." I respectfully agree with this statement of law. The notice of demand Ex. A. 5 dated 27th March, 1978 is a valid notice of demand.
(15) Learned counsel for the appellants also submits that the cheques dated 27th May, 1977 and 16th March, 1978 sent to the respondent No. 1 were legal tender. Respondent No. 1 on the other hand submits that the cheque was not a legal tender, that there has been previous litigation and he never accepted the cheque from the appellants. He further submits that in this case also when the cheque dated l6th March, 1978 was received by him Along with letter dated 20th March, 1978 it was returned to the appellants Along with letter dated 27th March, 1978 (Ex. A. 5) wherein he has informed that it was not a legal tender and it was not acceptable to him. In other words the landlord never accepted any cheque from the appellants towards payment of rent. It is admitted that the appellants were in arrears from 1st June, 1971 anA,tbe landlord had previously filed an eviction application against them on ground of non-payment of rent where an order under Section 15(1) of the Act was passed and the eviction petition was dismissed giving benefit of Section 14(2) of the Act to the appellants. There is no evidence on record that at any time the respondent-
landlord accepted any cheque towards payment of rent. Thus it would mean that the cheque was never accepted ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 16 / 39 as alegal tender by him. Learned counsel for the appellants refers to Damadilal and others v. Parashram and others, Mr 1976 S.C. 2229 where in it has been observed that in the absence of an agreement to the contrary a cheque sent by the tenant to a landlord towards payment of arrears of rent is a valid tender. There is no dispute about the proposition of law laid down but in the present case the landlord was never inclined to accept the cheque for payment of rent and it was for this reason that the cheque received by him was returned on 27th March, 1978 (Ex. A. 5). Thus in the present case it must be held that the cheque sent in March, 1978 was not a legal tender and it did not cover the whole of the arrears of rent. It is admitted on record that the rent from 1st November, 1976 has not been paid by the appellants.
(16) The Additional Rent Controller held that the cheque dated 27th May, 1977 for Rs. 247.50 as rent from October, 1976 to June, 1977 with letter dated 27th May, 1977 (Ex. R. 4) as alleged by the appellants was not delivered to respondent No. 1. The Rent Control Tribunal reversed this finding of fact and held that the letter with cheque was sent to the landlord. Respondent No. 1 submits that the said finding depended on oral testimony of the parties that the depositions of the appellants, namely Prem Parkash R.W. 1 and Gursaran Dass R.W. 2 were not believed by the Additional Rent Controller and therefore the conclusion reached by the Additional Rent Controller ought not to have been interfered with by the Rent Control Tribunal. He submits that the reasons given by the Additional Rent Controller for not accepting the testimony of the appellants have not been dealt with by the Rent Control Tribunal and therefore the finding of the Rent Control Tribunal is not binding on this court and must be set aside. Respondent No. 1 further submits that the acknowledgement receipt Ex. R. 6 does not bear his signatures and therefore it was the duty of the appellants to prove his signatures but there is no evidence on record to that effect, I find substance in it. The Additional Rent Controller after discussing the evidence of R.W. 1 and R.W. 2 has observed that the appellants have withheld the documentary evidence available with them and therefore adverse presumption ought to be drawn against them and the version of the appellants is not to be believed. In cross-examination Prem Parkash, R.W. 1 could not say about the period for which rent was payable to the landlord. He could not say for what period the rent had been deposited in the court of the Additional Rent Controller in the previous litigation. The counter-foil of the alleged cheque was not produced. He was not aware whether the cheques issued by the appellants were encashed or not. Similarly Gursaran Dass R.W. 2 only proved the 'Day Book' showing the entry regarding the said cheque copy of which is Ex. R.W. 1/1. He also could ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 17 / 39 not say whether the cheque was encashed or not. He was not in a position to know whether the cheques were sent to the landlord. He did not produce the ledger on the ground that it was a heavy book. He could not say for what period the rent had been deposited in the previous litigation. The appellants were maintaining the accounts of the landlord in their ledger but the same was not produced. R.W. 1 deposed about the letter dated 27 th March, 1978 marked 'C' alleged to have been sent by the landlord to the appellants. At one place he has deposed that letter 'C' was handed over to the clerk concerned Roshan Lal and at another place he stated that the letter was handed over to the counsel Mr. G.S. Mathur. He has also deposed that there was no correspondence between the appellants and the respondent- landlord. In view of the oral statement of the two witnesses on behalf of the appellants, withholding all the relevant documents admittedly in their possession, the Additional Rent Controller did not believe their version and held that the cheque was not sent. I have gone through the evidence on behalf of the appellants. I do not find any deposition regarding the proof of alleged signatures of respondent No. 1 on acknowledgment receipt (Ex. R. 6). I am therefore of the opinion that the trial court had given cogent reasons for disbelieving the appellants. The Rent Control Tribunal has not dealt with any reason given by the Additional Rent Controller but has reversed the finding by mere observing that :
"it cannot be believed that the appellant would not send the rent for the earlier period and still send the rent for subsequent period when the amount is so small, in fact it corroborates the earlier fact alleged by the appellant that rent had been sent by a cheque on earlier occasion and keeping in view the facts on the record, 1 must believe the appellant that earlier also a cheque was sent as rent from October, 1976 to June 1977." The Rent Control Tribunal has not dealt with the reasons given by the Additional Rent Controller for disbelieving the appellant but it has upset the said finding without any reasoning. This is not permissible in law.
(17) In Sarju Per shad Ramdeo Sahu v.
Jwaleshwari Pratap Narain Singh and others, it has been observed as under : "When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escape the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on question of fact."
ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 18 / 39In another case titled as M. K. Munthan vs M. Pasupathi decided on 13 July, 2001 in Appeal (civil) 537 of 1998; it was observed by Hon'ble Apex Court as under:-
"The money order comes back with the endorsement "Addressee not found". From that it is clear that the Respondent has not refused to accept the money order. It is very pertinent to note, at this stage, that the Respondent and the Appellant are staying in the same building. The Respondent has proved that, at time when money order was sent, he had gone out of town to attend the funeral of his mother-in-law. It appears that, knowing that the Respondent was not in town, the money order has been sent. Even otherwise it is impossible to believe that the Respondent/landlord would refuse to accept rent from the very first month after having let out the premises to the Appellant. Even though the money order was returned with the endorsement "addressee not found" no attempt has been made by the tenant to repay the rent. A Notice is then sent on 3rd November, 1988. Of course the landlord does not reply to this Notice. The Appellant then does nothing. It is only after the landlord files an Eviction Petition that the Appellant files an Application to deposit the rent in Court. In our view the High Court was quite right in concluding, on these facts, that the tenant had defaulted in payment of rent."
13. Keeping in view the settled proposition of law, this court has perused the record and the documents placed on record by both the parties and also testimonies.
Perusal of record shows that the respondent no. 1 has claimed to have given reply dated 03.04.2012 to the legal demand notice dated 06.03.2012. Respondent no. 1 has also claimed that he sent a cheque no. 008441 worth Rs. 83,419/- to the petitioner paying the arrears of rent in compliance with the legal demand notice dated 06.03.2012. Respondent No. 1 has also placed on record postal receipt of speed post dated 03.04.2012 in Ex. RW-1/10 in respect of sending the reply dated 03.04.2012. Moreover, the respondent No. 1 has placed on record photocopy of printout of speed post delivery report ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 19 / 39 obtained through SMS Tracker marked as Mark-B. Moreover, copy of the reply dated 03.04.2012 has also been placed on record marked as Mark-A. Copy of cheque bearing No. 008441 is also on record Ex. RW-1/P-1.
I have carefully gone through the abovestated documents placed by the respondent no. 1 and also gone through the testimony of RW-1/respondent no. 1 Sh. Gulzari Mal Makan.
It is expedient to reproduce the relevant portion of testimony of RW-1, which is as under:-
"I had sent a money order of rent in favour of Sh. Inderpal Singh, but I do not remember the exact date. Thereafter I had also sent a cheque towards the rent of tenanted premises in favour of Sh. Daljit Singh. A copy of said cheque towards rent is Ex. RW-1/P-1. Thereafter I had tendered rent to Sh. Daljit Singh but he refused to accept the same. I had tendered the rent only when we met one to one and Sh. Daljit Singh refused to accept the same......
..... I do not remember if petitioner had sent the legal notice dated 06.03.2012 through his counsel to me. The Ex. PW-1/5 (AD card) does not bear my signature. I do not remember if I had engaged any counsel to file reply of any notice sent by Sh. Daljit Singh. I do not remember as to how I had tendered the cheque Ex. RW- 1/P-1 to Sh. Daljit Singh.
I know lawyer named Sh. Dharmendra Priyani. I do not remember if I had sent a reply from the said advocate to Sh. Daljit Singh or his lawyer...
.... That at no stage Sh. Harpal Singh Veer and Sh. Taran Singh were in the shop. (Vol. I had paid the rent to Sh. Daljit Singh by way of cheque which has already been exhibited as Ex. RW-1/P-1). It is wrong to suggest that I did not pay the rent to petitioner despite service of legal notice to me. It is correct that I did not pay any rent after the abovementioned cheque to petitioner Daljit Singh. (Vol. He refused to accept the same). I do not remember if I had sent any money or deposit the rent in Court in favour of Sh. Daljit Singh. I visit shop atleast once in a day. Again said, I visit the shop once or twice."
14. I have carefully gone through the entire testimony of RW-1/Respondent No.1 Sh. Gulzari Mal Makan and also of testimonies of other witnesses on record. Perusal of testimony ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 20 / 39 of RW-1 clearly shows that RW-1 is not sure about tendering of rent by way of cheque Ex. RW-1/P-1 and he is taking contradictory stands in respect of cheque Ex. RW-1/P-1. Although RW-1 has claimed that after tendering by way of cheque also, he tried to tender the rent to Sh. Daljit Singh but the same was refused by him but no record or evidence has been produced by the respondent no. 1 to fortify such plea. During the cross examination, he has been unable to disclose how the cheque Ex. RW-1/P-1 was tendered to Sh. Daljit Singh. Even during the cross examination, he has not claimed that he had sent a reply through his counsel Sh. Dharmendra Priyani to Sh. Daljit Singh. Testimony of RW-1 clearly shows that although the respondent/RW-1 had claimed in his written statement that reply to the legal demand notice was sent along with the cheque tendering the arrears of rent but during the cross examination he has not been able to prove this fact.
As such, the respondent No. 1 has not been able to prove the fact of payment or tendering or deposit the demanded arrears of rent in compliance with the legal demand notice as issued by the petitioner, as during the cross examination, respondent/RW-1 has himself admitted that no rent has been paid or tendered or deposited except by tendering it by way of cheque Ex. RW-1/P-1.
It is well settled law that the onus is on the respondent/tenant to prove the fact of payment of rent to the petitioner but the respondent has not been able to discharge this burden. Moreover, in view of the material on record, the respondent No. 1 has not been able to prove his intention with regard to payment of rent to the petitioner, as the respondent No. 1 always had the opportunity to move before the court of ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 21 / 39 Rent Controller/ARC U/Sec. 27 of the D.R.C. Act in case he had the intention to pay the arrears of rent. No plausible reasons have been given for not approaching the Court of Rent Controller/Additional Rent Controller. As observed by the Hon'ble Superior courts in the judgments cited above, it is not sufficient to tender the cheque by way of post to discharge his liability in respect of payment of rent, there should be an intention also on the part of the tenant to tender or pay the rent.
Perusal of record shows that the petitioner has claimed that the rate of rent was revised to Rs. 2500/- w.e.f. 01.01.2007 and thereafter the respondent no. 1 and petitioner had a sitting in the first week of April, 2008 with regard to the revision of rent and the rent was revised to Rs. 3500/- per month which was agreed by the respondent no. 1 and the respondent No. 1 paid rent Rs. 3500/- p.m. for the month April, 2008. On the other hand, respondent has denied these facts.
Perusal of record shows that the petitioner has not placed on record any rent agreement in this regard even counter foils to the rent receipts have not been placed on record showing the rent as Rs. 2500/- or Rs. 3500/- p.m. No independent oral evidence has been produced by the petitioner to prove the rate of rent as Rs. 2500/- or Rs. 3500/-. On the other hand, the respondent has placed on record rent receipts Ex. RW-1/2 (Colly.) for the year 2003, 2004 and 2005 which show the rate of rent as Rs. 1500/- p.m. Even the rent note Ex. RW-1/1 placed on record by the respondent No. 1 shows that initially the rate of rent was Rs. 450/- per month. Moreover, during the cross examination PW-1/ S. Daljit Singh/ petitioner deposed that "it is correct that I have not filed on record any document to show that the rent was increased to Rs. 3500/-.
ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 22 / 39(Vol. As there was no such document). At the time of letting out the premises, the rate of rent was Rs. 2500/- p.m."
As such, the petitioner has not been able to prove that rate of rent of the tenanted premises was Rs. 2500/- or Rs. 3500/- as claimed by him. On the other hand, respondent has been able to prove the rate of rent as Rs. 1500/- p.m. In my considered view, keeping in view the material on record, testimonies and discussion earlier, the respondent No. 1 has not been able to prove the payment or tendering or deposit of rent due to him. As such, it is proved on record that legal demand notice as issued by the petitioner has not been complied with by the respondent no. 1.
CONCLUSION ON SEC. 14(1)(A) D.R.C. ACT:
15. As such, the petitioner has been able to prove all the ingredients of 14(1)(a) of DRC Act in respect the window showcase towards Gali side of shop no. 10 (now claimed by respondent as shop no. 10-B), New Market, Tilak Nagar, New Delhi-110018, more specifically shown in green and red colours in the site plan attached with the petition.
16. Perusal of record shows that no order U/Sec. 15(1) D.R.C. Act was passed in the present case. Hence, an order U/Sec. 15(1) of the D.R.C. Act is passed directing the respondent to pay or tender the rent to the petitioners or deposit in the court at the rate of Rs. 1500/- per month w.e.f. 22.05.2009 (Legally recoverable rent) till date along with simple interest @ 15% per annum within one month from the date of this order and the respondent no. 1 (Sh. Gulzari Mal Makan) is also directed to pay the future rent at the same rate month by month ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 23 / 39 on or before 15th day of each succeeding English calendar month.
17. Nazir is directed to file his report on 16.10.2019 regarding compliance by the respondent no. 1 (Sh. Gulzari Mal Makan) of order U/Sec. 15(1) of the D.R.C. Act passed today by this court.
18. Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
Section 14 (1) (b) sub-letting:-
19. It is expedient to reproduce the Section 14 (1)(b) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(b) That the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord".ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 24 / 39
20. As per Delhi Rent Control Act, Section 14 (1)(b) D.R.C. Act is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely prohibited by the law or by the Delhi Rent Control Act but the subletting should be with the consent of landlord and such consent should be in writing. Section 14 (1)(b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
(ii). No consent in writing was taken from the landlord by the tenant.
21. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting take place only when there divesting of physical possession as well as of the right to possession. In other words, there must be vesting of ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 25 / 39 possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant keeps the control with him, it can not be said that sub-tenant is in exclusive possession of premises and in such situation the case does not fall within Section 14 (1)(b) D.R.C. Act.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
In the case titled as Vaishakhi Ram & Others Vs Sanjeev Kumar Bhatiani 2008, 14 SCC, it was held as under:-
"21. It is well settled that the burden of proving subletting is on the landlord but if the landlord proves that the subtenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of subletting."
In the case titled as Munshi Ram Vs Bhoj Ram through LRs in C.M. (M) No.1612/2010 and C.M. No.8004/2005, it was observed as under:
"It is well settled that to make out a case for subletting or parting with possession, it means giving a possession to persons other than those to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant. The word 'subletting' necessarily means transfer of an exclusive right to enjoy the property in favour of the third party."
In the case titled as Shalimar Tar Products Ltd. Vs H.C. Sharma, 1988, 1 (SCC) 70, the Hon'ble Apex Court noted that to constitute a subletting, there must be a parting with a legal possession and whether in a particular case, there was subletting or not, was a question of fact.
It is well settled that to establish the aforesaid ingredients, the landlord must establish that tenant had completely divested ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 26 / 39 himself of the suit premises and parted with possession of the suit premises of the whole or part of the premises to the sub- tenants and this should be substantiated by the evidence.
In the case titled as Praveen Saini Vs Reetu Kapur & Anr. 246 (2018) DLT 709, the Hon'ble High Court of Delhi inter- alia observed as under:-
"On the aspect of admissions being binding, this Court would like to straightaway refer to the judgment of the Supreme Court in the case of Nagindas Ramdas Vs Dalpatram Ichharam alias Brijram & Others, 1973 (SLT Soft) 15 (1974) 1 SCC 242, because in this judgment the Supreme Court has laid down the ratio that evidentiary admissions are different than judicial admissions. Supreme Court has held that admissions which are made in judicial proceedings are on a higher pedestal than evidentiary admissions made in the form of correspondence etc and that judicial admissions can be a basis in themselves for deciding the claim. The relevant para 27 of the judgment in the case of Nagindas Ramdas (supra) read as under:-
"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the court, on the basis of which the court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rivalas evidence are by themselves not conclusive. They can be shown to be wrong."ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 27 / 39
In the case titled as Sukhpal Singh & Anr. Vs Satbir Singh & Anr. 296 Capital Law Judgment 2012 (4), the Hon'ble Delhi High Court inter-alia observed as under:-
"4. It is important to note that the onus of proving sub-tenancy lies on the landlord. 0The Supreme Court in "Jagan Nath Vs Chander Bhdn, AIR 1988 SC 1362", enunciated the principles whereby once the landlord has proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts upon the tenant."
In the case titled as Padam Chand Jain Vs Messrs Mahabir Pershad & Sons and another, S.A.O. No.464 of 1968, the Hon'ble Delhi High Court inter-alia observed as under:-
"It is now settled by the decision of a Full Bench of this Court in Kedar Nath and another Vs Smt. Mohini Devi, etc. that the initial burden lies upon the landlord to establish that any of the conditions mentioned in the clauses (a) to (e) of the proviso exists (vide at page 170-I of the report)."
22. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the entire testimonies of all the witnesses from the petitioner's side and respondent's side and also all the relevant documents filed on record and I have heard the arguments advanced by the Ld. Counsels and I have also gone through carefully the case law relied upon.
23. Lets discuss the 1st ingedients:-
(i). The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 28 / 39
24. Perusal of record shows that the petitioner has claimed that he came to know in the month of January, 2012 that the respondent no. 1 has sub-let, assigned or parted with possession of the tenanted premises to one Sh. Bunty for a lump-sum amount or otherwise without his knowledge, consent or written permission. That on 20.08.2012, the petitioner came to know through some reliable persons that Sh. Bunty has abandoned the tenanted shop and the respondent no. 1 has again sub-let, assigned or parted with possession of the tenanted shop in the first week of August, 2012 to Sh. Harpal Singh Veer and Sh. Taran Singh for a valuable consideration or otherwise without the knowledge or permission or written consent of the petitioner. That Sh. Harpal singh Veer and Sh. Taran Singh are presently in the use and occupation of the tenanted shop. That there exists no shop under the number 10- B, New Market, Tilak Nagar, under the landlordship/ownership of the petitioner.
On the other hand, the respondent No. 1 has claimed that the tenanted premises, since the very inception of tenancy till date, is being used exclusively by respondent no. 1 only.
It is well settled that initial burden to prove that sub-tenant is in exclusive possession of the suit property is on the owner/petitioner. However, the onus to prove the exclusive possession of the subtenant is that of preponderance of probability only and he has to prove the same prima- facie only and if he succeeds then the burden to rebut the same lies on the tenant.
In the case titled as Associated Hotels of India Limited Delhi Vs. S.B. Sardar Ranjit Singh, 1968, AIR (SC) 933, it was held that when eviction is sought on the ground of ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 29 / 39 subletting, this onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
As such, it is clear from the settled law that the burden of prove sub-letting is on the landlord and the onus would shift on the tenant to explain his possession only after the discharge of such burden by the petitioner.
Perusal of record shows that the petitioner has not placed any document which shows that respondent no. 1 Sh. Gulzari Mal Makan is not in the possession of the tenanted premises. Even, no independent oral evidence has been produced to prove the factum of sub-letting by the respondent no. 1. Even during the cross examination PW-1/ petitioner/ S. Daljit Singh has deposed that "I have not filed any document on record to show that the respondent no. 1 sub-let the tenanted premises to respondent no. 2 or respondent no. 3. I have also not filed any photographs to show that respondent no. 2 & 3 are working from the tenanted premises. Vol. I have the photographs in my possession. It is correct that shop number given in the petition ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 30 / 39 is incorrect. Again said, the shop number in the petition is correct."
As such, perusal of record and testimony of petitioner manifestly shows that the petitioner has not been able to discharge his burden in respect of physical possession by any person other than respondent no. 1.
(ii). No consent in writing was taken from the landlord by the tenant.
25. Perusal of record shows that in the present case, petitioner has claimed that no consent in writing was taken by the tenant/respondent No. 1 in respect of subletting. On the other hand, the respondent has denied these allegations and submitted that he is in possession of the property since beginning till date.
Since, the petitioner has failed to satisfy the first ingredient as discussed earlier, there is no need to discuss this ingredient.
As such in my considered view, in view of settled proposition of law as mentioned above, the petitioner failed to prove the ingredients of Sec. 14(1)(b) of D.R.C. Act. As such, the prayer U/Sec. 14(1)(b) D.R.C. Act is dismissed.
Section 14(1) (j) & (k) of D.R.C. Act:-
26. Section 14(1)(j) is reproduced as under:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 31 / 39 contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(j) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises.
(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate."
27. As mentioned earlier, all the alterations and additions in the premises are not substantial damage and the duty is always on the landlord to prove that such alterations and additions have caused substantial damage to his premises. It is well settled that every damage is not substantial damage.
It is well settled that every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 32 / 39 aspect of the building. It is also clear that every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and each case depends upon its own facts.
28. In my considered view, the petitioner has not been able to fulfill the requirements as formulated by the Hon'ble High Court of Delhi in case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645.
It is well settled that every damage to premises does not entitle the landlord to obtain the eviction order. There should be substantial damage to the premises. There should be material alteration in the premises. The onus to prove that the tenant has caused substantial damage to the property is on the landlord.
In the case titled as Shakuntla Devi Vs Avtar Singh 113 (2004) DLT 424, the Hon'ble Delhi High Court observed that:-
"6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant-respondent has punctured the weight- bearing walls of the premises in question and created additional space for himself by way of parchhati equivalent to the floor area, admits of increase of weight on the load-bearing walls and certainly can be said to have caused substantial damage to the premises in question. The tenant can not damage the walls, erect additional space and yet claim that no substantial damage has been caused to the premises in question. Structural change which brings about additional load on the existing load bearing walls, is substantial damage to the premises in question. It is not necessary that the walls must crumble under additional weight to bring the mischief of the tenant under Section 14(1)(j) of the Act. Suffice to say in the facts and circumstances of the present case where the tenant has punctured holes into the walls created additional space by erecting a parchhati ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 33 / 39 equivalent to the floor area of the room in question and is using the same for either storage of goods and/or residence purposes, would come within the mischief of Section 14(1)(j) of the Act. The tenant is not permitted to make any changes/alterations so as to increase load on the walls which are otherwise designed to hold the structure as was let out to the tenant".
In the case titled as Suraj Parkash Sawhney Vs Bhagat Ram passed in S.A.O.No.328-D of 1964, the Hon'ble Punjab and Haryana High Court observed that:-
"Sub-Section (10)has been introduced as a corollary to clause (j) of the proviso to sub- section(1), and it is provided that in cases where the tenant caused a substantial damage to the demised premises the Controller may direct the tenant to carry out repairs to the damage caused to his (the Controller's) satisfaction or to pay such amount by way of compensation as the Controller may direct. The sub-section has been enacted to grant relief to the tenant causing substantial damage to the demised premises in case he is prepared to undo the damage caused by him. Sub-section (10), however, does not make it imperative for the Controller to give a choice to the tenant either to repair the damage or to pay the compensation. It would in my view, depend upon the circumstances of each case for the Controller to decide as to whether he should make an order calling upon the tenant to repair the damages or to pay an amount by way of compensation and to mould his directions accordingly. The Controller is vested with a discretion in the matter which must be exercised judicially looking to the facts of each case, and it is for the Controller to decide as to what type of order contemplated by sub-section (10) should be made by him. In a case like the present if the order were not for the construction of the intervening wall but only for payment of a paltry compensation of Rs.200/- which would, according to Mr. Hardy, be the cost of constructing the wall, there would always be a danger of the entire building falls down because of the demolition of the wall which was supporting roof. The payment of compensation in a case like the present wall hardly be the proper relief and as such the Additional Controller and Tribunal were in my opinion fully justified in direct the tenant construct the intervening wall in case he wanted to avoid his eviction in Appeal No.328-D of 1964 is consequently dismissed."ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 34 / 39
In the case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645, the Hon'ble High Court of Delhi observed as under :-
"(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
(iii) tenant has made his construction without the consent of landlord;
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii) an eviction order under Clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation aspect of the building;
(ix) a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and that each case would depend upon its own facts; and
(xi) the impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant."
29. I have carefully gone through the pleadings of the parties ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 35 / 39 keeping in view the guidelines and observations made by the Hon'ble Supreme Court and Hon'ble High Court.
30. Perusal of record shows that the petitioner has claimed that the respondent No. 1 has made unauthorised and illegal additions/alterations by extending the size of the said window showcase upto 2.5 ft. and fixed the iron shutter thereon unlawfully and illegally encroached on the MCD Road, more specifically shown in green and red colours in the site plan.
On the other hand respondent has denied these allegations.
I have carefully perused the material on record and also the testimonies. It is expedient to reproduce the relevant portion of evidence of PW-1, which is as under:-
"I have not filed any complaint to the MCD regarding the alleged encroachment by the respondent. (Vol. I had visited the office of the MCD to make oral complaint against the respondent no. 1). I do not remember if this fact has been mentioned by me in my petition or in my evidence by of affidvait. It is wrong to suggest that any action regarding the alleged unauthorised construction was taken by MCD against respondent no. 1. (Vol. The whole of the market is the witness to the action taken against respondent no. 1 in respect of demolition of said unauthorised construction). I do not know if the photographs of the alleged encroachment by respondent no. 1 was filed on record by my earlier advocate who has since died. Q. Whether the said photographs which were given by you to your Ld. Previous counsel are on court record or not ?
At this stage, the court file has been shown to the witness.
Ans: There are no such photographs on court record. I do not know when my ld. Previous counsel expired. I do not know my ld. Previous counsel expired one and a half years ago. I have not discussed the issue of non filing of the photographs with my present Ld. Counsel."
As such, perusal of record clearly shows that petitioner has not been able to prove the ingredients of Sec. 14(1)(j) of the ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 36 / 39 D.R.C. Act.
31. As mentioned earlier, all the alterations and additions in the premises are not substantial damage and the duty is always on the landlord to prove that such alterations and additions have caused substantial damage to his premises. It is well settled that every damage is not substantial damage.
It is well settled that every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation aspect of the building. It is also clear that every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and each case depends upon its own facts.
32. As such, in my considered view the petitioner has not been able to fulfill the requirements as formulated by the Hon'ble High Court of Delhi in case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645.
33. In view of well settled proposition of law and discussion earlier and material on record, I am of the considered view that the petitioner has not been able to satisfy all the ingredients of Sec. 14(1)(j) of DRC Act and also the requisites as directed by the Hon'ble High Court.
34. Perusal of Sec. 14(1)(k) D.R.C. Act shows that following ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 37 / 39 are the ingredients:-
(i). Tenant used the premises in contravention of conditions imposed by the government authority giving landlord a lease of land.
(ii). The tenant continued such contravention despite previous notice given by the landlord.
35. Perusal of Sec. 14(1)(k) of D.R.C. Act shows that to succeed U/Sec. 14(1)(k) of D.R.C. Act, there should a contravention of lease deed but in the present case no lease deed has been filed/placed on record giving the terms and conditions. Since the terms and conditions are not proved on record by the petitioner, the contravention thereof cannot be proved. Moreover, no legal notice has been served upon the respondent no. 1 to stop such contravention of lease deed.
As such, all the ingredients of Sec. 14(1)(k) D.R.C. Act are not satisfied by the petitioner.
CONCLUSION:-
36. In view of the aforesaid discussion, the petitioner has been able to prove all the ingredients of 14(1)(a) of DRC Act in respect the window showcase towards Gali side of shop no. 10 (now claimed by respondent as shop no. 10-B), New Market, Tilak Nagar, New Delhi-110018, more specifically shown in green and red colours in the site plan attached with the petition.
Perusal of record shows that no order U/Sec. 15(1) D.R.C. Act was passed in the present case. Hence, an order U/Sec. 15(1) of the D.R.C. Act is passed directing the respondent to pay or tender the rent to the petitioners or deposit ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 38 / 39 in the court at the rate of Rs. 1500/- per month w.e.f. 22.05.2009 (Legally recoverable rent) till date along with simple interest @ 15% per annum within one month from the date of this order and the respondent no. 1 (Sh. Gulzari Mal Makan) is also directed to pay the future rent at the same rate month by month on or before 15th day of each succeeding English calendar month.
Nazir is directed to file his report on 16.10.2019 regarding compliance by the respondent no. 1 (Sh. Gulzari Mal Makan) of order U/Sec. 15(1) of the D.R.C. Act passed today by this court.
Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
37. Furthermore, the petitioner has failed to prove the ingredients of Sec. 14(1)(b),(j) & (k) of D.R.C. Act. As such, the prayer U/Sec. 14(1)(b), (j) & (k) D.R.C. Act is dismissed.
38. This file be consigned to Record Room after due compliance.
Announced in the open Court Digitally signed
on 7th Sept., 2019. AJAY by AJAY NAGAR
Date:
(This judgment contains 39 pages) NAGAR 2019.09.07
16:25:30 +0530
(Ajay Nagar)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25955/16 Sh. Daljeet Singh(Deceased) Through L.Rs Vs. Sh. Gulzari Lal Makan Page 39 / 39