Delhi District Court
Deepak Garg vs Tarsem Kumar Satender Pal on 4 May, 2011
IN THE COURT OF SH. D.K.JANGALA :
ADDL. RENT CONTROLLER: NORTH-WEST:ROHINI: DELHI
E. No. 71/08
U/S 14 (1) (a) of DRC Act, 1958
Deepak Garg
S/o late Shri Ajay Garg,
R/O C-7, 1st Floor, Arya Samaj Road,
Majlis Park, Delhi.
......... petitioner
VERSUS
Tarsem Kumar Satender Pal
S/O Sh. Hazari Lal,
R/O D-98, Lord Krishna Road, Adarsh Nagar,
Delhi-33
Also At:- Public Choice Centre, C-7 ( G.F),
Arya Samaj Road, Majlis Park, Adarash Nagar,
Delhi .
Date of institution: 26.03.08
Date of final arguments: 27.04.11
Date of judgment : 04.05.11
JUDGMENT
1. The petitioner filed the present eviction petition U/s 14 (1) of Delhi Rent Control Act, 1958, ( herein after called as DRC Act, 1958 ). The petitioner stated that he is the landlord and the respondent is a tenant in the premises No. C-7, Ground Floor, Arya Samaj Road, Majlis Park, Adarsh Nagar, Delhi-110033 as shown in red colour in the site plan. It is stated that the premises was let out for non residential purpose. It is stated by the petitioner that the tenant has not paid the rent since July 2007 despite repeated requests . It is stated that a legal demand notice was sent by the petitioner to the respondent but the respondent has failed to pay the arrears of the rent . It is further stated that the respondent has mis-used the premises as it was let E-71/08 out to the respondent only for the purpose of godown but the respondent is running a shop in the premises by making alterations in the tenanted portion without taking permission from the petitioner. It is stated that the respondent is also misusing the electricity and the electricity department is threatening the petitioner for disconnection as the electricity meter is installed in the name of the petitioner. It is stated that the petitioner is an unemployed person and he is married and required the said premises for his own bonafide use to earn his livelihood and to support his family. The petitioner prayed that the eviction order may kindly be passed.
2. The respondent filed the written statement and raised the preliminary objection that the present petition is not maintainable in the present form as the same does not disclose under which clause of Section 14 (1) of DRC Act, 1958 the present petition has been filed . It is stated that it is very relevant to mention that the petitioner used to collect the payment of rent in respect of the suit shop on behalf of the landlady Mrs. Krishna Rani and in the month of August 2007 the petitioner approached the respondent and collected the rent from him in his name by giving him assurance to provide documents of ownership in his favour , however he has failed to provide any such document to respondent . It is stated that earlier also the respondent received the legal notice dated 15.09.04 from one Shri Ravi Kumar who claimed himself to be lawful owner of the tenanted premises. It is stated that the petitioner has no locus standi to file the present petition because there are several legal heirs of Smt. Krishna Rani .
3. The respondent on the reply on merit denied the relationship of landlord and tenant with the petitioner. It is admitted that the rate of rent of the tenanted shop is Rs.1000/- per month excluding electricity charges. It is denied that the property was let out for godown purpose but the tenant made alteration in the property and now using the E-71/08 same as shop. It is stated that the suit shop was let out since beginning and used for the purposes of running shop by the tenant. It is stated that earlier the rent was collected by the petitioner on behalf of the owner/ landlady till 31.12.06, thereafter on 31.08.07 a sum of Rs. 8000/- was collected by the petitioner w.ef. 01.01.07 to 31.08.07 by putting his name as landlord and he has also got prepared an agreement in this regard. It is denied that the petitioner is an unemployed person and need the suit premises for his bonafide requirement to earn his livelihood. It is stated that the petitioner is running agency of Airtel mobile service in the shop lying constructed in the back portion of the suit shop and is using the entire first floor portion of the said property for the purpose of his residence. . It is further stated that the petitioner is also having a Banquet Hall under the name and Style of Shalimar Banquet . It is further stated that the petitioner is having his own farmhouse and got his own business and good source of income.
4. The petitioner filed the replication to the written statement of the respondent . The petitioner has stated that he has filed the present petition for non payment of rent as well as for eviction of the respondent as the premises is required for the bonafide use of the petitioner. The petitioner denied all other submissions of the respondent.
5. The relevant and material extract of the evidence are as under:-
The petitioner filed his evidence by way of affidavit EX PW 1/A and deposed in terms of the petition. PW-1 proved the copy of the legal notice as EX PW 1/ 2 and its postal receipts as EX PW 1/3 and EX PW 1/ 4, the copy of the relinquishment deed as EX PW 1/5. During cross-examination PW-1 admitted that he has filed the site plan on 02.05.09 alongwith an application with the prayer to take the same on record but the same does not bear his signatures. During his cross-
E-71/08 examination it is admitted that he has wrongly mentioned the year and date of death of his father as 1996 due to tension in his mind. He admitted that the suit property was owned by Smt. Krishna Devi , who is grand mother and she had three sons and two daughters. It is admitted that now one son and one daughter has already expired. It is admitted that Smt. Shama Gupta has expired. It is also stated that after the death of Smt. Krishna Devi in the year 1984-85 his uncle Sanjay Garg and and Ajay Garg used to collect the rent from the respondent for about 1 ½ or 2 years and now he is collecting the rent since 1996 or 1998. PW-1 was confronted with the rent receipt produced by the respondent. The rent receipt dagted 01.06.04 is EX PW 1/R1 . The rent receipts dated 01.10.06, 25.10.06, 23.07.06, 18.07.07, 20.11.06 , 01.01.07 to 31.08.07 are admitted by the PW-1. It is admitted that the rent was always received in the name of Smt. Krishna Devi. The original rent agreement executed between the petitioner and the respondent dated 29.09.06 was produced by the respondent and the petitioner admitted his signature and signature of the respondent on the rent agreement as EX Pw 1/R-7. It is stated that the respondent was having full knowledge that he is entitled to receive the rent as landlord after the death of Smt. Krishna Rani. It is stated that since Smt. Krishna Rani was the original landlady , therefore, he used to issue the rent receipt in her name even after her death. It is further stated that a will in the name of Shri Ravi Kumar was left behind by Smt. Krishna Rani with respect to the suit property. It is stated that he is the owner of the property since 2007 and prior to that Shri Ravi Gupta was the owner. It is admitted that there is a small shop behind the suit shop and voluntarily it is stated that there is a room . It is further stated that the said room is measuring 9' X 15'. It is denied that he is running the agency of Airtel products from the said shop. It is admitted that the last paid rent is E-71/08 upto 31.08.07 as per receipt EX PW 1/R5. It is admitted that the children and the husband of Smt. Shama Gupta have not signed on the relinquishment deed.
6. PW-2 Smt. Neha Gupta filed her evidence by way of affidavit EX PW 2/A. PW-2 deposed that she is the sister of the petitioner and the petitioner is an unemployed person and need the property in question for his bonafide need to earn his livelihood. It is stated that the petitioner is the owner of the suit property. During cross- examination PW-2 stated that she do not know whether Smt. Krishna Rani executed any will during her life time. She also stated that she do not know whether Smt. Shama Gupta old out a portion measuring 90 square yards out of the property in question. It is admitted that there is a shop on the ground floor of the property and there is also a shop on its back and there is residential portion on the first floor. It is stated that the petitioner is an unemployed and he is working as Chauffeur.
7. Pw-3 Shri Sanjay Garg filed his evidence by way of affidavit EX PW 3/A. PW-3 deposed that he is the real uncle of the petitioner and the petitioner is an unemployed and need the property in question for his bonafide need. PW-3 deposed that petitioner is the owner of the suit property. During cross-examination PW-3 admitted that in the year 2000 , 90 square yards area of the said property was sold out by his sister Shama Gupta in the capacity of its owner. It is admitted that the suit property consist of one shop in the front side and one small shop in the back side of ground floor and residential accommodation on the first floor. It is voluntarily stated that after the death of father of the petitioner the suit shop was given through family settlement to the petitioner and the petitioner was collecting the rent. It is stated that the family settlement was oral. It is also stated that after execution of the will by his mother in favour of sister Shama Gupta none of the E-71/08 legal heir has right in the suit shop.
8. PW-4 Shri Anjay Garg filed his evidence by way of affidavit EX PW 4/A and deposed that he is the real uncle of the petitioner and the petitioner is an unemployed and need the property in question for his bonafide use. During cross-examination it is admitted that at the time of inception of the tenancy Pagri was given. It is admitted that rent was collected from the suit shop and the respondent never came to them to pay the same. It is also admitted that as per the will of his mother the rights in the property have devolved upon his elder sister Shama Gupta. It is admitted that he executed the relinquishment deed in favour of the petitioner only for his satisfaction. It is admitted that he was not having any right or share in the suit property, however it is denied that petitioner is not the owner of the suit property.
9. The respondent examined RW-1 Shri Ram Mehar, Chief Supervisor of Telephone Exchange. The RW-1 produced the copy of the summoned record as EX RW 1/1 and deposed that the telephone connection was opened in the name of Satinder Kumar in the suit premises.
10. RW-2 Shri Satish Kumar from the office of NDPL proved the connection installed on the suit premises. The copy of the record is proved as EX RW 2/1.
11. RW-3 Shri Satish Kumar from the office of Licensing Branch, MCD Office, proved the license issued in the name of respondent as EX RW 3/A.
12. RW-4 Shri Sunil Mann from the office of Sub- Registrar, Kashmiri Gate, proved the summoned record of will of Smt. Krishna Rani as EX RW 4/1.
13. RW-5 Shri Ashok Kumar filed his evidence by way of affidavit as EX R-5. RW-5 Ashok Kumar deposed that the respondent has taken on E-71/08 rent the suit shop and is running the shop since beginning of sale of clothes under the name and style of M/S Public Choice Centre. He further deposed that there is one shop in the back portion of the tenanted premises in which petitioner is running and doing the work of mobile etc.
14. The respondent filed his evidence by way of affdiavit EX R-6 and deposed in terms of his written statement. The respondent has proved the document i.e. MCD license as EX RW 6/1, the legal notice and reply is proved as EX RW 6/2 and RW 6/3. The copy of the legal notice dated 04.10.07 is proved as EX PW 6/4 and its postal receipt is proved as EX RW 4/5. The legal notice dated 08.10.08 is proved as EX RW 6/4. It is also deposed by the respondent that last payment was made to the petitioner as rent till 31.08.07 but thereafter he did not make the further payment of rent as petitioner has failed to bring any document of his ownership. It is further deposed by the respondent that he has deposited the entire arrears of the rent as per the direction of the court. The bills of the Deepak Enterprises are proved as EX RW 6/8. The site plan is proved as EX RW 6/9. During cross- examination the respondent admitted that he started paying the rent to the petitioner in the year 1996 or 98. He stated that he do not know whether the petitioner is the owner of the suit premises or not.
15. I have carefully perused the material on record and gone through the submissions of both the parties.
16. The respondent has raised the preliminary objection that the petitioner has filed the present petition U/S 14 (1) of DRC Act, 1958 and it is not clear on which ground the petition is filed. However, the petitioner in his replication has stated that he has filed the petition for non payment of rent and on the ground of bonafide requirement. The petitioner has not mentioned the specified ground in the eviction E-71/08 petition. The petitioner accepted that he is not having legal knowledge and he is dependent on the legal accuman/ wisdom of the counsel engaged by him. It is the matter of common knowledge that the legal accuman / knowledge of law/ procedure differs from lawyer to lawyer. It is true that in the eviction petition specific ground of eviction of the respondent is not mentioned. However, the same is the mistake committed by the counsel while drafting the petition and the petitioner should not suffer its consequences . Moreover the petitioner has explained in the replication that he is pressing his petition on the ground of non payment of rent and the bonafide requirement. Therefore, in the present facts and circumstances I consider the present petition U/s 14 (1) (a) for non payment of rent and U/S 14 (1) (e) of DRC Act, 1958 for bonafide requirement.
17. First of all I will take up the petition U/S 14 (1) (a) of DRC Act, 1958 for disposal . The necessary ingredients for relief U/S 14(1) (a) of DRC Act, 1958 are as under:-
(a) there exist relationship of landlord and tenant.
(b) Existence of arrears of rent legally recoverable on the date of service of demand notice
(c) service of notice of demand upon the respondents
(d) that the tenant failed to pay or tender the entire legally recoverable arrears of the rent within 2 months from the date of service of demand notice.
18. there exist relationship of landlord and tenant.
In the present case the petitioner stated that he is the landlord and respondent is the tenant in the suit premises. The respondent in his written statement has stated that he used to collect the rent of the suit shop and in August 2007 the petitioner approached the respondent and collected the rent in his name. The respondent in his evidence by way of affidavit EX R-6 deposed that he has made the last payment of rent to the petitioner till 31.08.07 and during cross-
E-71/08 examination has stated that he start paying rent to the petitioner since 1996 or 1998. The respondent has also confronted the petitioner with rent receipt EX AW-1R-1 to AW1/R-6 and rent agreement EX AW- 1/R-7,. Therefore, these documents left no doubt that the petitioner is the landlord and respondent is the tenant in the suit premises. Therefore, the relationship of landlord and tenant regarding the suit premises is established between the parties.
19. Rate of rent .
The rate of rent @ Rs.1000/- is not in dispute in the present case. The petitioner has stated that the rate of rent @ Rs.1000/- per month and respondent has also admitted the rate of rent @ Rs.1000/- per month.
20. Existence of arrears of rent legally recoverable on the date of service of demand notice In the present case the petitioner in his petition has stated that the respondent was in arrears of the rent since July 2007 upto the date of sending the legal demand notice . The respondent in his written statement has stated that he has paid the rent upto August 2007. AW-1 during his cross-examination has admitted that he has received the rent upto 31.08.07 as per receipt EX AW 1/R-5. He also stated that as per his memory the rent was paid upto July 2007, however as per the receipt the rent has been paid upto 31.08.07. The respondent in his evidence by way of affidavit EX R-6 has admitted that he paid the rent till 31.08.07 and did not make the further payment of rent as the petitioner has failed to furnish any document of his ownership. The evidence of the parties and admission on the part of the respondent makes it clear that the respondent was in arrears of the rent after 31.08.07 @ Rs.1000/- per month.
21. Service of notice of demand upon the respondents The petitioner has further stated that the legal demand notice dated 04.10.07 EX AW 1/ 2 vide postal receipt EX AW 1/ 3 and EX AW 1/ 4 E-71/08 was sent to the respondent. The respondent during his examination has admitted the receipt of the legal notice dated 04.10.07 and stated that he reply the legal notice vide reply EX RW 6/5. The admission of respondent regarding receipt of the legal demand notice left no doubt that the legal demand notice dated 04.10.07 was duly served upon the respondent.
22. That the tenant failed to pay or tender the entire legally recoverable arrears of the rent within 2 months from the date of service of demand notice.
It is stated by the petitioner that despite service of legal notice dated 04.10.07 the respondent has failed to make the payment of the arrears of the rent after 31.08.07 @ Rs.1000/- per month within 60 days. The respondent in his evidence has stated that he paid the rent upto 31.08.07 and did not make the further payment of rent as the petitioner has failed to furnish any document of his ownership qua the tenanted shop and even no one else approach for rent thereafter. The respondent himself has placed on record the rent receipt EX AW 1/R-1 to EX AW 1/R-6 and the rent agreement EX AW 1/R-7. The respondent has paid the rent to the petitioner without any dispute . Even the rent agreement was executed between the petitioner and the respondent. The respondent in his evidence has also admitted that he started paying the rent to the petitioner- Deepak Garg since 1996 or 1998. The contention of the respondent withholding the rent on the ground , that the petitioner fails to produce the document of ownership is not tenable in the eyes of law. The respondent himself has admitted the relationship of landlord and tenant with the petitioner, therefore, he was having no right to withheld the rent on this ground. Even if the respondent was having doubt about the relationship of landlord/ownership than the respondent was having the legal remedy available U/S 27 of DRC Act, 1958 to deposit the rent. Once the legal notice served upon the party it is the onus on E-71/08 that party to discharge the legal demand notice by making the payment. However, in the present case the respondent has failed to discharge the legal notice by making the payment within time without any justified ground. Therefore, I hold that the respondent has failed to make the payment of arrears of the rent as demanded by the legal notice dated 04.10.07 within 60 days of service of notice.
23. Therefore, in view of the above discussions I am of the considered opinion that petitioner has able to prove all the necessary ingredients for grant of relief U/s 14 (1) (a) of DRC Act, 1958 . The petitioner has proved that their exist relationship of landlord and tenant between the petitioner and respondent regarding the tenanted premises and respondent was tenant @ Rs.1000/- per month in the suit premises . The petitioner has proved that despite receipt of legal notice EX Pw 1/ 2 the respondent has failed to make the payment of arrears of the rent w.e.f. 31.08.07 within 2 months .Accordingly the petitioner is entitled for relief U/S 14 (1) (a) of DRC Act, 1958 . Therefore, the petition U/S 14 (1) (a) of DRC Act, 1958 is allowed. However, the eviction order straightway cannot be passed . Therefore U/S 15 (1) of DRC Act, 1958 the respondent is directed to pay or deposit the arrears of rent @ Rs.1000/- per month w.e.f 31.08.07 till date within one month from the date of service of this order and the eviction order may be passed in case of non compliance of the said order.
24. Main file be consigned to Record Room and Ahlmad is directed to prepare the separate miscellaneous file for the purpose of consideration of benefit of protection U/S 14 (2) of DRC Act, 1958 to the respondent. The copy of the judgment be kept in the miscellaneous file . Put up for report on 12.07.11.
E-71/08
25.Naib Nazir is directed to report whether the respondent has complied with the order passed U/S 15 (1) of DRC Act, 1958 or not. Naib Nazir is directed to give his report only after expiry of period of one month from the date of service of the copy of this order upon the respondent.
26. Petition U/S 14 (1) (e) of DRC Act, 1958 for bonafide requirement ;
The petitioner filed the petition on the ground of bonafide requirement . It is stated by the petitioner in the petition that he is an unemployed and married person and required the suit premises for his own bonafide need to earn his livelihood to support his family. It is stated by the petitioner that he has no other property in his name. The petitioner examine d himself as PW-1 and deposed in terms of his submissions. The PW-2 Neha Gupta has also deposed that the petitioner is an unemployed and need the property for his bonafide use. PW-3 and 4 have also deposed on the same lines. All the PWs have deposed that the petitioner is the owner of the suit premises. On the other hand the respondent examined RW-4 who produced the will of Smt. Krishan Rani. The respondent also deposed that petitioner is not the owner of the suit premises and he does not require the premises for his bonafide use. It is also deposed by the respondent that petitioner is having another shop available on the ground floor where he is running his office in the name of Deepak Enterprises and residing on the first floor. The petitioner during his cross-examination has denied that shop on the back side is in his possession. However, it is stated that it is a small shop but later on admitted the the said room is of the area of 9' X 15'. However, PW-2 during her cross-examination has admitted that it is a shop on the ground floor. PW-3 has also admitted that it is shop on the back side in the possession of the petitioner. PW-3 has admitted that 90 sq. E-71/08 yards area was sold by his sister Shama Gupta in the capacity of the owner. It is also admitted that after execution of the will by his mother in favour of his sister Shama Gupta no other legal heir has right, title or interest in the entire property including the suit shop.
27. PW-4 has also admitted that as per the will of his mother the rights of the property have devolved upon his elder sister Shama Gupta . It is admitted that he was not having right or share in the property at the time of execution of relinquishment deed. Even the petitioner during his cross-examination has admitted that Smt. Shama Gupta has expired leaving behind her three sons, two daughters and husband. It is also admitted that the children and husband of Shama Gupta have not signed on the relinquishment deed.
28. In view of the above discussions it is clear that relationship of landlord and tenant is established between the parties. The petitioner has stated that he is having no other property in his name, whereas during his cross-examination the possession of one shop on the back side of the suit premises is also admitted. PW-3 and PW-4 have deposed that it is a shop in the back portion of the suit premises. Therefore, in the present facts and circumstances I am of the considered opinion that alternate accommodation is admitted by the petitioner in the same premises, hence, the petition U./S 14 (1) (e) of DRC Act, 1958 on the ground of bonafide requirement filed by the petitioner is dismissed.
Announced in the open court ( Devender Kr. Jangala) on 04.05.11 Addl. Rent Controller: Rohini E-71/08