Delhi District Court
Shri Mukesh Kumar vs Shri Sukhdev Singh on 17 November, 2011
E.No.75/2006
IN THE COURT OF SH. D.K.JANGALA :
ADDL. RENT CONTROLLER: NORTHWEST:ROHINI: DELHI
E. No.75/2006
U/S 14 (1) (a) of DRC Act, 1958
Shri Mukesh Kumar
Son of Shri Hawa Singh
R/o B43, Vijay Vihar,
PhaseII, Delhi110 086 ......... Petitioner
Versus
Shri Sukhdev Singh
R/o I477, Mangol Puri,
Delhi ........ Respondent
Date of institution: 20.04.2005
Date of final arguments: 14.11.2011
Date of judgment : 17.11.2011
J U D G M E N T
1. The petitioner filed the present petition for eviction of the respondent/tenant under Section 14(1)(a) of Delhi Rent Control Act (hereinafter called the DRC Act). It is stated by the petitioner that he is the owner and landlord of the suit premises i.e. one room in I 477, Mangol Puri, Delhi as shown in red colour in the site plan. It is stated that the respondent is the tenant in the suit premises which was let out for residential purpose. It is stated that rate of rent is Mukesh Kumar Vs. Sukhdev Singh Page 1 of 15 E.No.75/2006 Rs.500/ p.m. exclusive of electricity and water charges. It is stated that respondent/tenant from 04.6.2003 till date has neither paid the rent nor paid electricity charges to the landlord. It is stated that the petitioner through his counsel issued a legal notice dated 30.10.2004 in which he demanded the possession of the tenanted premises as well as the rent from the respondent w.e.f. 4.6.2003 till October 2004 plus electricity charges which was duly served upon the respondent. It is stated that the petitioner sent the legal notice through UPC also but the respondent has fails to comply. It is prayed that eviction order may kindly be passed under Section 14(1)(a) of DRC Act.
2. The notice of the petition was issued to the respondent and he filed his written statement. The respondents took preliminary objections stating interalia that he is the owner of the suit premises as his father Shri Sadhu Singh was the original allottee of the suit property. It is alleged by the respondent that no transaction or sale agreement was entered into between the parties. He further alleged that only some false documents were prepared by the petitioner and he has filed a separate suit for specific performance which is pending in the Court of Shri Jitnder Mishra, Ld. Civil Judge, Delhi.
3. In the reply on merits the respondent has stated that the suit Mukesh Kumar Vs. Sukhdev Singh Page 2 of 15 E.No.75/2006 property is covered under slum area as the property in question was allotted to his father under Rehabilitation Scheme of Ministry of Urban Development of Govt of India and this Court has no jurisdiction to try and entertain the present petition. It is further stated that electricity and water connections are in the name of the respondent. The other averments in the reply on merits are denied by the respondent. It is prayed that eviction petition may kindly be dismissed.
4. In the replication the petitioner has denied the contents of written statement and reiterated and reaffirmed the contents of written statement.
5. It is also pertinent to mention that vide order dated 19.2.2007 the Ld. Predecessor of this Court deferred the order on the application u/s 15(1) of DRC Act stating interalia that the respondent had disputed the ownership of the property in question. The petitioner Shri Mukesh Kumar aggrieved by the order filed an appeal which was dismissed by the orders of Shri B.B. Choudhary, Ld. ARCT, Delhi on 19.11.2007.
6. The petitioner examined himself as AW1 and filed his evidence by way of affidavit Ex.AWA and deposed in terms of the petition. The petitioner proved the site plan as Ex.PW1/1; rent agreement Ex.PW1/2; copy of the legal notice 30.10.2004 sent to Mukesh Kumar Vs. Sukhdev Singh Page 3 of 15 E.No.75/2006 the respondent through registered post proved as Ex.PW1/3; AD Card proved as Ex.PW1/4 and Ex.PW1/5. The legal notice was also sent through UPC and the UPC was proved as Ex.PW1/6. The petitioner proved the GPA in favour of the respondent by his father as Ex.AW1/7; agreement to sell executed by the respondent in favour of the petitioner is proved as Ex.PW1/8; affidavit proved as Ex.PW1/9; receipts of money of Rs.1,55,000/ and Rs.1,50,000/ from the petitioner is proved as Ex.PW1/10 and Ex.PW1/11. He further proved the General Power Attorney in his favour as Ex.PW1/12.
During cross examination AW1admitted that Shri Sadhu Singh was the original allotted of the suit property. He further deposed that he had seen the original documents of the property in question and they all were registered and his friend Shri Yashbir explained the documents to him. He further deposed that he is not aware from whom Shri Sadu Singh had purchased the property in question. He deposed that at the time of purchase of the property in question the respondent with his family members as well as his father and his family members were residing in the suit property. He stated that only two rooms on the ground floor were constructed at the time of purchase of the property. He denied that he never took the physical vacant possession of the suit property. He Mukesh Kumar Vs. Sukhdev Singh Page 4 of 15 E.No.75/2006 deposed that at the time of payment to the respondent his father and his friend Shri Yashbir were present. He deposed that at the time of purchase the property in question he took all the original documents of the title in name of Shri Sadhu Singh and had filed the same on judicial record. He stated that the documents executed by Shri Sadhu Singh in favour of the respondent were not executed in his presence. He admitted that he had filed a suit for specific performance against the respondent and his father which is pending. He further deposed that all the documents in his favour were executed by the respondent at the office of Sub Registrar on 4.6.2003 at about 1010.30 a.m He further deposed his friends namely Shri Yashbir and Shri Satish were present at the time of taking the possession of the suit property. He stated that on the same day itself i.e 4.6.2003 at about 4 p.m. after execution of rent agreement between the parties, at about 78 p.m. he handed over the keys of the property in question to the respondent. He stated that the respondent never complied with the terms of the rent agreement Ex.AW1/2. He denied that he is neither the owner nor the landlord of the suit property.
8. The respondent filed his evidence by way of affidavit on 6.5.2010. Thereafter several opportunities were given to the respondent to tender his affidavit, but neither the respondent nor Mukesh Kumar Vs. Sukhdev Singh Page 5 of 15 E.No.75/2006 anyone was present on his behalf despite giving sufficient opportunities to him, therefore, the respondent evidence was closed.
9. I have carefully perused the material on record and gone through the submissions of both the parties.
10. It is submitted by Ld. counsel for the petitioner that the petitioner has examined himself as AW1 and proved all the necessary ingredients for grant of relief u/s 14(1)(a) of DRC Act. It is stated that the petitioner has proved the rent agreement Ex.AW1/2 which establish the relationship of landlord and tenant between the parties. It is stated that respondent has failed to examine any witness, therefore, the evidence led by the petitioner remained unrebutted and unchallenged, therefore, the eviction petition may kindly be allowed.
11. On the other hand it is submitted by Ld. counsel for respondent that petitioner has failed to prove its case against the respondent. It is stated that the rent agreement was never acted upon the parties which has no bearing in the present case. It is also stated that the petitioner has failed to prove his case because the petitioner has failed to prove the relationship of landlord and tenant between the parties. It is stated that the petitioner has himself admitted that a suit for specific performance regarding the Mukesh Kumar Vs. Sukhdev Singh Page 6 of 15 E.No.75/2006 same premises is also pending between the parties which establish that the petitioner is not the owner/landlord of the suit premises, therefore, the eviction petition may kindly be dismissed.
12. The provision of Section 14(1)(a) of DRC Act is reproduced as under for guidance:
"14. (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 any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, makes an order for the recovery of possession of the premises on one or more of the following grounds only namely: 14(a) " That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two month's of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882."
13. The necessarily ingredients of Section 14(1)(a) of DRC Act are as under:
(a) there exist relationship of landlord and tenant;
(b) the rate of rent;
(c) existence of arrears of rent legally recoverable on the date of service of demand notice;
(d) service of notice of demand upon the respondents.
(e) that the tenant failed to pay or tender the entire legally Mukesh Kumar Vs. Sukhdev Singh Page 7 of 15 E.No.75/2006 recoverable arrears of the rent within 2 months from the date of service of demand notice.
14. THERE EXIST RELATIONSHIP OF LANDLORD AND TENANT It is stated by the petitioner that he is the owner and landlord of the suit property and respondent is a tenant in the same. It is submitted by the petitioner that he is owner and landlord of the suit premises by virtue of the documents Ex.AW1/7 to Ex.AW1/12. The petitioner has also proved the rent agreement Ex.AW1/2. The respondent in his written statement has denied the relationship of landlord and tenant. It is stated that respondent is the coowner of suit property. It is stated that some false documents were prepared by the petitioner and he has filed a suit for specific performance which is pending in the Court of Civil Judge, Delhi. It is stated that no transaction of sale agreement took place between the parties. It is also denied that any rent agreement was ever executed between the parties.
The petitioner has examined himself as AW1 and proved the documents regarding the purchase of the suit property in his favour. However, at this stage the documents of ownership are not concerned because the petitioner has to prove only the relationship of landlord and tenant between the parties. The petitioner has proved the rent agreement Ex.AW1/2 to prove the existence of Mukesh Kumar Vs. Sukhdev Singh Page 8 of 15 E.No.75/2006 relationship of landlord and tenant. The testimony of the petitioner is corroborated with the rent agreement Ex.AW1/2. The respondent led no evidence to rebut the testimony of the petitioner. Even though the respondent denied the execution of the rent agreement but the respondent neither examined himself nor produced any other witness to prove that rent agreement was not executed between the parties. It is also pertinent to mention that respondent nowhere denied his signatures on the rent agreement Ex.AW1/2. On this issue I have placed reliance upon the judgment of Hon'ble Supreme Court reported as "Devasahayam (D) by LRs Vs. P. Savithramma & Ors, 2005(2) RCR 369" wherein it has been held that:
"when the agreement by landlord to sell the property to tenant was entered into, the old relationship of landlord and tenant came to an end and the rights and liabilities of the parties were required to be worked out on the basis of that agreement."
The Hon'ble Andhra Pradesh High Court in the judgment reported as Ratansh Patel (Tenant) Vs. Mohd. Kazim Ali & Ors. 2004(2) RCR 76" wherein it has been held:
"that ownerlandlord entering into agreement to sell premises to tenant and receiving entire consideration. Tenant not liable to pay rent even though saledeed not registered. It is held that Mukesh Kumar Vs. Sukhdev Singh Page 9 of 15 E.No.75/2006 relationship of landlord and tenant ended with sale agreement."
In another judgment reported as "Shri Ramesh Chand Sharma Vs. Shri R.S. Aggarwal & Ors, 1982(2) AIRCJ 428" it has been held that:
"there is no bar for the Controller to decide an eviction application merely on the ground that a title suit relating to the suit property was also pending before the Civil Court."
15. In the present case the relationship of landlord and tenant is denied by respondent but no evidence has been produced on record by the respondent. It is stated by the respondent that a civil suit for specific performance of contract relating to suit property is pending before Ld. Civil Judge, Delhi, therefore, the present petition is not maintainable. The Hon'ble Supreme Court has held that once the sale agreement is entered into between the parties, the relationship of landlord and tenant came to an end and the rights and liabilities of the parties are required to be worked out on the basis of that agreement. The Court has to see whether there is a jural relationship of the landlord and tenant between the parties. The existence of rent agreement Ex.AW1/2 leaves no doubt that the relationship of landlord and tenant exist between the parties.
16. It is also stated by counsel for respondent that the present Mukesh Kumar Vs. Sukhdev Singh Page 10 of 15 E.No.75/2006 eviction petition is not maintainable because a title suit for specific performance is pending before the Ld. Civil Court, however, the Hon'ble High Court of Delhi in a case titled as "Shri Ramesh Chand Sharma Vs. Shri R.S. Aggarwal & Ors" (supra) held that there is no bar for the Controller to decide an eviction application merely on the ground that a title suit relating to the suit property was also pending before the Civil Court.
17. The petitioner has filed the present petition u/s 14(1)(a) of DRC Act, therefore, the Court has to see the relationship of landlord and tenant between the parties. The petitioner is not under the duty to prove the ownership of the suit premises. Therefore, in view of above discussion and citations, I am of the considered opinion that pendency of the civil suit for specific performance is not a bar for this Court to decide eviction application because the eviction petition u/s 14(1)(a) of DRC Act is based on the relationship of landlord and tenant. A person can be landlord even though he may not be the owner of the suit property. In view of above discussion I hold that there exists relationship of landlord and tenant between the parties regarding the suit premises i.e. I477, Mangol Puri, Delhi.
18. THE RATE OF RENT It is stated by the petitioner on oath that the suit premises Mukesh Kumar Vs. Sukhdev Singh Page 11 of 15 E.No.75/2006 was let out to the respondent at a monthly rent of Rs.500/ excluding other charges. The petitioner has also proved the rent agreement Ex.AW1/2. The respondent has not led any evidence to rebut the testimony of the petitioner. Therefore, on the basis of unrebutted and unchallenged testimony of the petitioner, I hold that the rate of rent of the suit premises was Rs.500/ per month excluding other charges.
19. EXISTENCE OF ARREARS OF RENT LEGALLY RECOVERABLE ON THE DATE OF SERVICE OF DEMAND NOTICE.
It is submitted by the petitioner that suit premises was let out to the respondent vide rent agreement dated 04.6.2003 and the respondent has failed to tender or pay the arrears of rent w.e.f. 4.6.2003. The petitioner has examined himself and deposed on oath that respondent was in arrears of rent w.e.f. 4.6.2003. The respondent in his written statement has denied the existence of relationship of landlord and tenant and it is nowhere stated by the respondent that he has tendered or paid the arrears of the rent. Therefore, on the basis of unrebutted and unchallenged testimony of the petitioner, I hold that that the respondent was in arrears of rent w.e.f. 4.6.2003 @ Rs.500/ per month excluding other charges.
20. SERVICE OF NOTICE OF DEMAND UPON THE Mukesh Kumar Vs. Sukhdev Singh Page 12 of 15 E.No.75/2006 RESPONDENTS It is stated by the petitioner that a legal demand notice dated 30.10.2004 was served upon the respondent through registered post and UPC. The petitioner has examined himself as AW1 and deposed on oath that a legal demand notice Ex.AW1/3 was served upon the respondent. The copy of the postal receipt and AD Card are proved as Ex.AW1/4 and Ex.AW1/5. The postal certificate is proved as Ex.AW1/6.
The respondent in his written statement has denied the receipt of the legal demand notice. However, the respondent led no evidence to rebut the evidence led by the petitioner. The petitioner has proved on record legal demand notice Ex.AW1/3 and its postal receipt and AD Card. The UPC receipt is also proved on record. Moreover, there is a presumption of service of legal demand notice u/s 27 of General Clauses Act upon the respondent. Accordingly I hold that legal demand notice dated 30.10.2004 was duly served upon the respondent.
21. THAT THE TENANT HAS FAILED TO PAY OR TENDER THE ENTIRE LEGALLY RECOVERABLE ARRERS OF RENT WITHIN 2 MONTHS FROM THE DATE OF DEMAND NOTICE.
It is stated by the petitioner that despite service of legal demand notice dated 30.10.2004 the respondent has failed to make the payment of arrears of rent. The respondent in his written Mukesh Kumar Vs. Sukhdev Singh Page 13 of 15 E.No.75/2006 statement has denied the existence of relationship of landlord and tenant and it is nowhere stated that on the receipt of legal demand notice be paid the arrears of rent.
22. The petitioner examined himself as AW1 and deposed on oath that the respondent has failed to make the payment of the arrears of rent despite service of legal demand notice dated 30.10.2004. The respondent led no evidence. In the present facts and circumstances and on the basis of unrebutted and unchallenged testimony of the petitioner, I hold that respondent has failed to make the payment of the arrears of rent as demanded vide legal demand notice dated 30.10.2004.
23. The petitioner has proved on record all the necessary ingredients for the grant of relief u/s 14(1)(a) of DRC Act. The petitioner has proved that there exists relationship of landlord and tenant between the parties regarding the suit premises. The petitioner has also able to prove that the suit premises was let out to the respondent at the rate of Rs.500/ per month excluding other charges and despite service of legal demand notice dated 30.10.2004 the respondent has failed to make the payment of the arrears of rent w.e.f. 4.6.2003 within 60 days of its receipt. Therefore, the eviction petition filed by the petitioner u/s 14(1)(a) of DRC Act is allowed.
Mukesh Kumar Vs. Sukhdev Singh Page 14 of 15 E.No.75/2006
24. The eviction order straightway cannot be passed against the tenant/respondent. Therefore, tenant/ respondent is entitled to be considered for grant of benefit under section 14(2) of DRC Act, 1958. Therefore u/s 15(1) of DRC Act respondent is directed to make the payment of the arrears of rent @ Rs. 500/ per month w.e.f. 04.06.2003 to upto date within one month from the date of passing the judgment subject to adjustment of payment, if any , made during the trial.
25. The main file be consigned to record room and Ahlmad is directed to prepare a separate miscellaneous file for the purpose of consideration of benefit under section 14(2) of DRC Act. Put up now on 21.12.11. A copy of this judgment be kept in the separate miscellaneous file. Meanwhile, naib nazir to report whether the respondent has complied or not with the order passed. Petitioner is directed to disclose whether respondent has complied with said orders or not. Respondent is also directed to produce all the receipts/proofs regarding compliance of said orders on the next date i.e. 21.12.11.
Announced in the open court ( Devender Kr. Jangala) on 17.11.11 Addl. Rent Controller: Rohini ( This judgment contain 15 pages and each page bears my signature). Mukesh Kumar Vs. Sukhdev Singh Page 15 of 15 E.No.75/2006 Mukesh Kumar Vs. Sukhdev Singh Page 16 of 15 E.No.75/2006 File be consigned to Record Room. Announced in the open court ( Devender Kr. Jangala) on 15.11.2011 Addl. Rent Controller: Rohini
This judgment contains six pages and each page bear my signatures Mukesh Kumar Vs. Sukhdev Singh Page 17 of 15