Delhi District Court
Sh. Khemchand vs Sh. Rakesh Kumar Arya on 18 May, 2015
IN THE COURT OF MS. VRINDA KUMARI: ADDITIONAL
DISTRICT JUDGE-03 : PATIALA HOUSE COURTS :
NEW DELHI
RCA: 22/14
Sh. Khemchand
S/o. Late Sh. Rameshwarlal
Resident of 531/532, Budh Nagar,
Inderpuri, Delhi .....Appellant
Versus
Sh. Rakesh Kumar Arya
Resident of F-531-532, Budh Nagar,
Inderpuri, Delhi ......Respondent
Date of institution : 19.07.2014
Date on which reserved for order : 16.05.2015
Date of decision : 18.05.2015
ORDER
1. Vide this order, I shall dispose of the present Regular Civil Appeal against the impugned order dated 20.05.2014 in Civil Suit RCA No: 22/14 Page no. 1 of 12 no. 256/2011, titled as "Sh. Khem Chand V/s Rakesh Kumar Arya"
announced by Ld. Civil Judge(SW), Dwarka Courts, New Delhi.
2. The contentious issue before this Court in the appeal under consideration is whether the rate of rent of the tenanted premises was Rs. 3300/- per month excluding the electricity and water charges for the period from 28.03.2006 to 28.03.2009 or was it inclusive of electricity charges at flat rate of Rs. 1000/- per month and water charges at the rate of Rs. 300/- per month.
3. It is not disputed that the tenanted property (suit property) comprises of entire 1st floor of the built up property no. F-531/532, Budh Nagar, Inderpuri measury 50 Sq. yards. It is a two room set with kitchen and toilet. It was oral tenancy and the rent receipts were not issued.
4. The contention of the appellant is that the rate of rent for the period from 28.03.2006 to 28.03.2009 was Rs. 3300/- per month excluding the electricity and water charges. Thus, enhancement of the rent by 10% pushed the claim of plaintiff for possession of tenanted premises outside the purview of Section 50 of the Delhi RCA No: 22/14 Page no. 2 of 12 Rent Control Act, 1958. The notice of enhancement of rent was issued on 06.08.2009. The civil suit for possession was filed by the appellant on 21.11.2009. On the other hand, case of the respondent is that he was inducted as tenant in the suit premises on rent at the rate of Rs. 2000/- per month along with Rs. 1000/- per month towards the electricity charges on flat rate and Rs. 300/- per month towards water charges. The determination of the quantum of rent is essential as by the time Civil Suit was filed by the appellant, a separate electricity meter in the name of the respondent had already been installed in the suit premises.
5. In the plaint, the contention of the appellant was that the rate of rent was Rs. 3300/- per month and the electricity and water charges were to be paid over and above this amount as per the consumption. In the replication, however, the appellant has submitted that it was settled between the parties that the respondent would pay 1/4th of the total electricity charges of the premises no. F-531/532 apart from the rent of Rs. 3300/- per month. During the trial, the appellant relied upon the oral testimonies of three other RCA No: 22/14 Page no. 3 of 12 witnesses (PW2 to PW4) to show that the rate of rent was Rs. 3300/- per month and electricity charges were to be paid as per consumption over and above the rent.
6. The defendant on the other hand has produced documentary evidence by summoning the concerned official from NDPL Inderpuri to show that payment of electricity charges could neither have been paid as per the consumption nor to the tune of 1/4 th share of the total bill of the entire premises. It is not disputed that four tenants resided in the premises no. F-531/532 at the relevant time.
7. DW2 Sh. Mahinder Kumar, Assistant Grade-II, NDPL Inderpuri produced the summoned record. Ex.DW2/A is the inspection report dated 04.04.2008 regarding "assessment and misuse". Ex.DW2/C is a show cause notice dated 04.04.2008 issued to the appellant by NDPL. These documents show that there were four tenants in the 4 floors of the premises, namely Sh. Raju, Sh. Mohan Verma, Sh. Rakesh (respondent herein) and Sh. Sumir. These documents also show that two electricity meters were installed for all the 4 floors in the premises. One was a commercial RCA No: 22/14 Page no. 4 of 12 connection and the other was a domestic one. These documents also show that commercial activities were being carried out on the ground floor and the 2nd floor of the premises whereas 1st floor and the 3rd floor of the premises were residential in nature. During inspection, it was found that there was no display in the meter display windows. Supply of domestic connection was also found used for commercial activities at ground floor and 2nd floor as well as at premises no. F-532. The inspection by NDPL of the premises is not disputed. There is no serious challenge on behalf of the appellant to the above mentioned documents. The appellant has failed to clarify that if two separate electricity meters were installed in the premises for four tenants and if commercial activities were being carried out at two floors, how was respondent required to pay 1/4th of the total consumption of electricity. The appellant has also failed to explain that if there was no display found in the meter display windows of the two electric meters, how were tenants able to pay the electricity charges as per consumption.
8. Against the oral testimonies of PWs 2, 3 and 4, the RCA No: 22/14 Page no. 5 of 12 documentary evidence summoned by the respondent shall hold weight and preponderance of probability shall be measured on the basis of these documents. The above discussion leads to one inescapable conclusion that electricity charges could not have been paid either as per consumption or on the basis of 1/4th share of total bill. This lends credence to the case of respondent that the electricity charges were not to be paid over and above the amount of Rs. 3300/- per month.
9. The appellant has also relied upon his statement of account (Ex.PW1/1) to show the amount of rent being paid by the respondent. This document shows that some payments of Rs. 3300/- were made by the respondent to the appellant through cheques. To decide whether these payments were towards rent alone or whether these payments included electricity and water charges also, the two entries in the statement of account pertaining to payment made in November 2007 and December 2007 are relevant. In November 2007, the defendant made a payment of Rs. 3000/- whereas the payment of Rs. 3450/- was made by him in the RCA No: 22/14 Page no. 6 of 12 month of December 2007. During his cross-examination appellant/PW1 could not explain this circumstance. During the arguments, Ld counsel for the appellant argued that sometimes short payment is made and adjustments are made later on. It was, however, not explained as to in what manner was the adjustment made. On the other hand, the explanation given by respondent/DW1 during his cross-examination to the effect that a cheque of Rs. 3000/- was issued after deducting the water charges of Rs. 300/- per month in view of stopping of water supply by the appellant and that subsequent cheque of Rs. 3450/- included a sum of Rs. 450/- (Rs. 150/- + Rs. 300/-) towards water charges of one and half months after restoration of water supply appeals to reason. Ld counsel for the respondent has argued that since water supply for about half the month was stopped, therefore, the respondent paid arrear of only Rs. 150/- for that particular month along with payment of Rs. 300/- in the subsequent month. The explanation and stand of DW1 in this regard is in consonance with his consistent stand that he paid an amount of Rs. 3300/- per month to appellant RCA No: 22/14 Page no. 7 of 12 which included rent at the rate of Rs. 2000/- per month, electricity charges at the rate of Rs. 1000/- per month and water charges at the rate of Rs. 300/- per month.
10. Ld counsel for the appellant has also argued that electricity charges constitute part of rent and, therefore, enhancement of the total rent of Rs. 3300/- per month by 10% after expiry of 3 years of tenancy would push the claim of the appellant outside the ambit of Section 50 of the DRC Act. This argument, however, is not applicable to the present circumstances. Since the appellant has failed to dispute that the separate electricity meter had already been installed in the suit premises in the name of the respondent in February 2009, that is, before filing of the civil suit, the question of considering electricity charges as part of rent does not arise. The case laws "S. Kumar Vs. G.R. Kathpalia & Anr 77(1999) Delhi Law Times 266 (DB)" and "Standard Pharmaceuticals Ltd VS Gyan Chand Jain & Anr 97(2002) Delhi Law Times 290" have no application on the facts of present controversy. As on the date of filing of the suit, the electricity charges were being paid separately RCA No: 22/14 Page no. 8 of 12 by the respondent. The plaintiff has failed to proof otherwise. Further, the case of the appellant is that the notice of enhancement of rent by 10% was issued on 06.08.2009. The record shows that by that time the respondent had already got a separate electricity meter installed at the premises in his name. Thus, where the electricity charges were being separately paid by the respondent, the enhancement of 10% shall act upon the rent of the premises only excluding electricity charges. As has been discussed above, the respondent's defense that for the period from 28.03.2006 to 28.03.2009, the amount of Rs. 3300/- included the electricity charges at flat rate of Rs. 1000/- per month and water charges at the rate of Rs. 300/- per month stands proved by pre-ponderance of probabilities. The rate of rent was, therefore, Rs.2000/- per month during that period. Thus, even after enhancement of rent by 10%, the rate of rent of the tenant premises was less than Rs. 3500/- per month. The suit of the appellant is, therefore, clearly barred U/Sec 50 of the DRC Act.
11. The other contention of the appellant that Ld. Trial Court has RCA No: 22/14 Page no. 9 of 12 not appreciated the testimony of PW4 Sh. Narayan Prasad in its right perspective is misconceived. The arguments that PW4 was not cross-examined by the defendant on the point of payment of rent @ Rs. 3300/- per month exclusive of electricity and water charges has been apty dealt with in the impugned judgment. It has been observed by Ld. Trial Court-
"During his cross examination it was stated by PW- 4 for the first time that there was one main meter in the premises and there were sub-meters for all the tenants, though, the case set up by the plaintiff during his cross examination dated 03.06.2011 is that in the year 2006 there were two electricity meters installed in the premises though none of the aforesaid meters were existing on the date of his deposition. It has never been the case of the plaintiff that electricity charges were payable by the defendant on the basis of consumption RCA No: 22/14 Page no. 10 of 12 recorded in any sub-meter. As has already been observed, the stand taken by the plaintiff in the plaint that the electricity charges were being paid by the defendant as per his consumption was subsequently contradicted by himself in his replication wherein he states that the amount of bill was to be divided into four and defendant was to pay 1/4th of the total bill amount. Under the aforesaid circumstances, I fail to understand as to how the plaintiff can take the benefit of non cross examination by the defendant of PW-4 on his deposition about the rate of rent payable by the defendant".
In his affidavit of evidence, PW4 claimed himself to be a tenant in the entire 2nd floor of the premises during the period from December 2006 to July 2008. He claimed to be residing there with RCA No: 22/14 Page no. 11 of 12 family. On the other hand, NDPL inspection report Ex.DW2/A shows that commercial activities were being carried out on the 2nd floor of the premises. The appellant's case does not draw any strength from his testimony.
12. In view of above discussion, this Court does not find any infirmity in the order of Ld. Trial Court in the impugned judgment dated 20.05.2014 CS no.256/11 titled as 'Khem Chand VS Rakesh Kumar Arya'. The present appeal is, therefore, dismissed.
13. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 18TH DAY OF MAY, 2015.
(VRINDA KUMARI)
ADJ-03/PHC/NEW DELHI
18.05.2015
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