Delhi District Court
Sh. Shiv Kumar Gupta vs M/S. Prakash Tent & Furnishing House on 28 July, 2011
IN THE COURT OF SH. VINOD KUMAR GAUTAM :
ADMINISTRATIVE CIVIL JUDGEcum ADDITIONAL RENT
CONTROLLER : (NORTH) DELHI.
In Re : E. No. 12/09/2006
Old E. No. 446/2006
Unique Case ID No. 02401C0049322006.
Sh. Shiv Kumar Gupta
S/o late Sh. Chhotu Ram Gupta
R/o 22/1, Shakti Nagar,
Delhi110007 Plaintiff.
Versus
1. M/s. Prakash Tent & Furnishing House
Through its Proprietor
Sh. Rajish Kumar Mehta
Situated at 22/1, Shakti Nagar,
Delhi110007.
2 nd
Address
D5, Kamla Nagar,
Delhi110007.
2. Sh. Shiv Charan Gupta
S/o late Sh. Chhotu Ram Gupta
C/o 22/1, Shakti Nagar,
Delhi110007. Defendants
Date of Institution of Suit : 24/01/2006
Date on which Order was reserved : 25/07/2011
Date of Pronouncement of Order : 28/07/2011
E. No. 12/09/06 Page No. 1 of 16
J U D G M E N T
In brief, the facts of the case are that the petitioner is the owner and landlord of the suit property bearing no. 22/1, Shakti Nagar, Delhi110007 in which one godown on the ground floor as shown in red colour in the site plan was let out to the respondent no.1 (hereinafter referred as suit property). The last monthly payable rent was Rs.220/ per month exclusive of all other charges. Initially, Late Shri Chhotu Ram Gupta, father of the petitioner and the respondent no.2, was the owner of the suit property and after his death on 19.11.97, the petitioner and the respondent no.2 became coowners in the ratio of 50 percent of share each of the suit property on the basis of the Will dated 06.12.19 executed by their father. The petitioner and respondent no.2 also got mutated the suit property in their own name and in the month of April 1998 they mutually divided the suit property between themselves in two equal parts and the tenancy of the respondent no.1 came in the share of the petitioner. The respondent no.1 is habitual defaulter in making the payment of rent and paid the rent up to February, 1998 and has not tendered the rent nor paid the same since 01.03.1988 therefore, the petitioner was constrained to send the legal notice dated 18.10.1999 to the respondent no.1 demanding the arrears of rent from the period E. No. 12/09/06 Page No. 2 of 16 01.03.1998 to 30..09.1999 @ Rs 200/ per month alongwith interest @ 15% per annum but the Respondent No.1 did not make the payment of the arrears of the rent of Rs.3800/ along with interest within the period of two months. The petitioner enhanced the rent by 10 percent as per the provisions of Section 6(A) of the Delhi Rent Control Act and the rent was increased from Rs 200/ to Rs 220/ per month exclusive of all other charges. The petitioner has prayed for passing of eviction order under Section 14(1) (a) of the Delhi Rent Control Act, 1958 against the respondent no. 1 in respect of one Godown on the ground floor of the suit property as shown in red colour in the site plan.
After service of the notice of the present petition, the respondent no.1 put his appearance in the present case and has filed the written statement and has taken therein various preliminary objections that the present petition is not maintainable as he has paid the rent to the petitioner till November 2005 but despite repeated demands no receipt was issued and the same was not pressed for in view of the good relations between the parties but the respondent no.1 to avoid the harassment has sent the rent for period from 01.03.03 to 28.02.06 @ Rs 220/ per month and the notice dated 18.10.99 was superseded and waived off in view of the subsequent E. No. 12/09/06 Page No. 3 of 16 notice dated 27.03.06 sent by the petitioner; that the mandatory notice as required under Section 14 (1) (a) of D.R.C. Act has not been served by the petitioner on the respondent no.1 and the earlier notice dated 18.10.99 was not served by the petitioner upon the respondent no.1; that the petition is not maintainable being time barred as the petition was filed in January/ February, 2006 on the basis of the alleged notice dated 18.10.1999 which is much beyond the period of Limitation under Article 137 of Limitation Act; that the tenancy of the respondent has not been terminated as required under the Delhi Rent Control Act and the Section 106 of the Transfer of Property Act.
On merits, it is submitted that the property was let out to the respondent no.1 at Rs 220/ per month and that it is not disputed that initially Late Shri Chhotu Ram Gupta was the owner of the suit property and denied that after his death the petitioner and the respondent no.2 became owners of the suit property as claimed by them as no document was ever shown to the respondent no.1 but it is submitted that the respondent no.1 has been paying the rent to the petitioner . It is denied that the respondent no.1 is the habitual defaulter and has not paid the rent w.e.f 01.03.99. The respondent no.1 has denied other avernments of the petition and has prayed for E. No. 12/09/06 Page No. 4 of 16 the dismissal of the petition.
Respondent No.2 has also filed the written statement submitting therein that he is the coowner of the suit property and so far as the ownership of the suit property is concerned has admitted the contents of the petition and has submitted that he has no objection if an eviction order is passed against the respondent no.1 and has prayed accordingly.
The petitioner has filed the replication and has reiterated and reaffirmed the contents of the plaint and has denied the averments made by the respondent no.1 in his written statement.
On 11012007 my learned predecessor passed an order under section15 (1) of the D.R.C. Act directing the respondent no.1 to pay or deposit the entire legally recoverable arrears of rent at the rate of Rs.220/ per month w.e.f. 01032003 till date within one month from the date of the order and shall to continue to pay or deposit the future monthly rent at the said rate month by month by th the 15 of each succeeding month.
In petitioner's evidence, the petitioner has examined himself as PW1, Sh. Ajit Kumar, Post Master, Tis Hazari Courts Post Office, Delhi as PW2, Sh. Dharam Dutt, Postman, Malka Ganj Post Office, Delhi as PW3, Sh. Om Prakash, UDC in the office of the Sub E. No. 12/09/06 Page No. 5 of 16 Registrar1, Kashmere Gate, Delhi as PW4 and Sh. S.K.Sehgal. Inspector Property Tax, Sadar Paharganj Zone, MCD, Delhi as PW5. Thereafter the petitioner's evidence was closed.
In respondent's evidence respondent no. 1 has examined himself as RW1 and thereafter the respondent's evidence was closed.
I have heard the arguments advanced by the learned counsel for the parties and have perused the records of the case and the authorities relied on behalf of the parties.
The petitioner has relied upon the authorities i.e V (2009) SLT 401, 1997 Rajdhani Law Reporter 432, 1996, Rajdhani Law Reporter 101, 1987 Rajdhani Law Reporter (SC) 398, 2009 (109) DRJ 19 and AIR 1979 Supreme Court 1745.
The respondent no. 1 has relied upon the authorities, i.e., AIR 1972 Delhi 271 and AIR 1994 Supreme Court 2227.
PW1 in his affidavit filed in examinationinchief has reiterated and reaffirmed his case as averred in his petition. The petitioner in his evidence has also exhibited various documents such as site plan, Ex.PW1/1, Notice dated 18101999, Ex.PW1/2, Registered Receipt issued by the Postal Authority, Ex.PW1/3, U.P.C., Ex.PW1/4, A.D. Card, Ex.PW1/5, the counter foils of the rent E. No. 12/09/06 Page No. 6 of 16 receipts as PW1/6, the copy of the Will dated 06121988 as Mark "A" and the copy of the Mutation Certificate as Mark "B".
PW2 and PW3 were examined by the petitioner to prove the Ex.PW1/3 who have deposed and brought a letter, Ex.PW2/A and a letter Ex.PW3/A respectively certified by Sub postmaster HSG II and Sub Postmaster HSG I respectively in respect of Ex.PW1/3 wherein in those letters it was mentioned that the record pertaining to Ex.PW1/3 were weeded out in due course.
PW4 was examined by the petitioner to prove the registration of the Will Mark "A" who has brought the record of the registered Will and has deposed that the Will was registered in the office of SubRegistrar1, Delhi on 05011989 vide registration no. 259, Book III, Volume No. 684, at pages 1522 and that the copy of the Will Mark A is same and correct as per the original record brought by the PW4 from the SubRegistrar's Office.
PW5 was examined by the petitioner to prove the document mark "B" who has brought the mutation record pertaining to the suit property who has deposed that as per their record the property has been mutated in favour of the petitioner and the respondent no.2 on 09012003. He further deposed that he has seen the document mark "B" and the carbon copy of the original of E. No. 12/09/06 Page No. 7 of 16 mark "B" is lying in his record and the same tally with mark "B" which is exhibited as Ex.PW5/1. PW5 further deposed that the said mutation was made on the basis of registered Will and the death certificate of Late Shri Chhotu Ram.
Respondent has only examined himself in respondent evidence as RW1 and in his examination in chief has reiterated and reaffirmed the averments made in the written statement. The respondent no.1 has also exhibited the documents i.e. three postal receipts Ex.RW1/1 to RW1/3, Challan as Ex.RW 1/4, Reply dated 04.04.2006 as Ex.RW1/5, Postal Receipt no.5840 as Ex.RW1/6 and UPC Receipt as Ex.RW1/7.
In the present case relationship between the parties are not in dispute. The rate of rent is also not in dispute. However the dispute between the parties is with regard to the notice dated 18.10.1999, Ex.PW1/2 which as per the case of the petitioner was sent by him to the respondent no.1 for recovery of the arrears of the rent from 01031998 to 30091999. On the other hand, the case of the respondent no.1 is that he never received the Ex.PW1/2 and has paid the rent till November, 2005 but the rent receipt was not issued by the petitioner despite repeated demands and the same was also not pressed for in view of the good relations between them. E. No. 12/09/06 Page No. 8 of 16
The petitioner to prove the service of the Ex.PW1/2 has filed on record the documents Ex.PW1/3 to Ex.PW1/5 and has also examined himself as well as PW2 and PW3 who have deposed that the concerned record pertaining to the service of the Ex.PW1/2 was weeded out by their department in due course. PW1 has deposed in his examinationinchief that the Ex.PW1/5 bears the signature/initial of the respondent no.1. There is no question or suggestion put on behalf of the respondent no.1 to the PW1 in his cross examination to deny or suggest that the signature or initial at Ex.PW1/5 does not pertains to the respondent no.1. Therefore the said signature is deemed to be admitted by the respondent no.1. The petitioner has relied on a case titled as Prime Industries Vs. Rafiq Ahmed 1997. Rajdhani Law Reporter 432 wherein the Hon'ble High Court of Delhi has held that if a notice of demand is sent by Registered Post as well as under postal certificate which is correctly addressed and report on Registered notice is avoiding service then notice sent under Postal Certificate should be deemed to be duly served vide presumption under section 114 of the Indian Evidence Act.
The facts in the present case are at better footing from the facts from the above referred case as the notice, Ex.PW1/2 E. No. 12/09/06 Page No. 9 of 16 was also sent by the petitioner by both modes Registered A.D. Post as well as by U.P.C. Post and the Registered A.D. Card, Ex. PW1/5 has received back with the initial on it for acknowledgment of receiving the legal notice, Ex. PW1/2. Even the respondent no. 1 in his cross examination has admitted that the addresses as mentioned at Ex. PW1/5 and at serial no. 1 of PW1/4 are correct addresses and belongs to him. Therefore in the present case a presumption can also be drawn in view of section 114 of the Indian Evidence Act regarding the notice Ex.PW1/2 been duly served upon the respondent.
On the other hand the respondent no. 1 has not led any evidence to prove that the Ex.PW1/2 was not received by him or he had tendered or paid the arrears of rent to the petitioner for the period as mentioned in the notice, Ex.PW1/2 within two months of receiving the notice, Ex.PW1/2 or has paid thereafter. The petitioner has proved on record the rent receipt, Ex.PW1/6 issued by him for the rent paid from the period from 01021997 to 30997 to prove that he used to issue the rent receipt whenever the rent was paid by the respondent no.1. PW1 has also deposed that the Ex.PW1/6 bears the signature of the respondent at point A to which there is no question or suggestion put to the PW1 in his cross examination to E. No. 12/09/06 Page No. 10 of 16 deny that the signature at point A does not pertains to the respondent no.1 and therefore the said signature pertains to the respondent no.1 is deemed to be admitted by the respondent no.1. The respondent no.1 has not led any evidence with regard to sending the letter for demanding the rent receipt from the petitioner and even the respondent no.1 has admitted in his cross examination that he has not written any letter to the petitioner for demanding the rent receipt. Therefore this defence taken by the respondent no.1 that the rent receipt was not paid by the petitioner despite repeated demands or the same was not pressed for by him due to good relation between them is devoid of any merits.
The other defence taken by the respondent no.1 that the petitioner has waived off the right to file the case on the basis of the notice Ex.PW1/2 on the alleged ground of non payment of the rent as no action was taken on the said notice by the petitioner for seven years. Learned Counsel for the petitioner has contended that the defence taken by the respondent no.1 that the present petition being filed by the petitioner after seven years, has no merits as the Limitation Act has no applicability to the proceedings under Delhi Rent Control Act. Ld. Counsel for the petitioner has also relied in his support on a case titled as Devender Singh Vs. MCD, 1996 Rajdhani E. No. 12/09/06 Page No. 11 of 16 Law Reporter 101 wherein it has been held by the Hon'ble High Court of Delhi that the notice of demand should be of legally recoverable sum and if the notice is not complied with within the statutory period of two months then landlord may file eviction petition even after three years as Limitation Act is not applicable to Rent Control proceedings. Ld. Counsel for the petitioner has also relied on a case titled as Ganpat Ram etc. Vs. Gayatri Devi, 1987 Rajdhani Law Reporter (SC) 398 wherein it was held by the Hon'ble Supreme Court that the landlord must file eviction suit without delay which under Article 66 of the Limitation Act must be within 12 years. Therefore, in view of the aforesaid authorities, the defence taken by the respondent no.1 that the present petition is beyond limitation, has no merits.
The contention of the Ld. Counsel for respondent no.1 is that there is no attornment in the present case. The said contention is beyond pleadings as the said objection has not been taken in the written statement. Moreover, it is also not the case of the respondent no.1 that the petitioner is not the owner of the suit property but the case of the respondent no.1 as pleaded in the written statement is that he had paid the rent till November, 2005 but the petitioner has not issued the rent receipt. PW1 has also stated E. No. 12/09/06 Page No. 12 of 16 in his cross examination that he orally told the respondent no.1 and also informed him through notice regarding the tenancy of the respondent no.1 falling in his share by virtue of the oral partition of the suit property between him and the respondent no.2. Therefore, the contention of the Ld. Counsel for the respondent that there is no attornment has no merits.
The PW1 has deposed that his father late Sh.
Chhotu Ram Gupta was the owner of the suit property who had executed a registered Will dated 06/12/1998 in favour of the petitioner and the respondent no.2, who are brothers and after the death of their father, the petitioner has become the owner of the half portion of the suit property after the partition between him and his brother and the property has been mutated in their names in the MCD records and the tenancy of the respondent no.1 has come in the share of the petitioner. PW4 has proved the registration of the Will mark 'A'. PW5 has been examined by the petitioner to prove the mutation of the suit property in the name of the petitioner and the respondent no.2. The respondent no.1 has also admitted that initially late Sh. Chhotu Ram Gupta was the owner of the suit property. In a case titled as Ishwar Dass Rajput Vs. Chaman Prakash Puri & Ors. 44 (1991) DLT 639 it has been held by the Hon'ble High Court of E. No. 12/09/06 Page No. 13 of 16 Delhi that it is not open to the tenant to challenge the legality and validity of a Will produced by landlord before Rent Controller. It is also a well settled law that mere denial of ownership is no denial at all as also been held in a case titled as Meenakshi vs. Ramesh Khanna and another 60 (1995) DLT 524. Even the respondent no.1 has alleged that he is paying the rent to the petitioner. It is a well settled law that the tenant can not challenge the title of the landlord during the occupation of the tenanted premises and if he wants to challenge the title, he has to vacate the tenanted premises. Hence, the contention of the learned counsel for the respondent no.1 with regard to the objection to the Will is devoid of any merits.
The other contention of the learned counsel for the respondent no. 1 is that the no notice as required under Section 106 of the Transfer of the Property Act has been given by the petitioner. In rebuttal to the said contention learned counsel for the petitioner has relied on the case titled as V. Dhanapal Chettiar Vs. Yesodai Ammal AIR 1979 SC 1745 whereby it was held by the Hon'ble Supreme Court that in order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 T.P. Act and that the tenant becomes liable to be evicted and forfeiture comes into play only if he E. No. 12/09/06 Page No. 14 of 16 has incurred the liability to be evicted under the State Rent Act and not otherwise. Therefore, in view of the above said authority, the contention of the learned counsel for the respondent no.1 has no merits.
The contention of the learned counsel for the respondent no.1 that on sending the subsequent notice dated 27/03/2006 by the petitioner, the earlier notice Ex.PW1/2 sent by the petitioner has been superseded, has no merits as it is a settled law that both the notices have separate cause of action and the present petition has been filed by the petitioner on the cause of action accrued in favour of the petitioner on the earlier notice, Ex.PW1/2 and moreover the subsequent notice was issued by the petitioner after filing of the present petition which have separate cause of action.
Therefore in view of my above discussions, the petitioner has been successful in proving his case under section 14 (1) (a) of the D.R.C. Act. Put up for consideration of giving the benefit of Section 14 (2) of DRC Act to the respondent for 23/09/2011.
Since the present eviction petition u/S 14 (1)(a) of the DRC Act is a case of first default, Nazir is directed to maintain a E. No. 12/09/06 Page No. 15 of 16 separate file to consider the entitlement of the respondent no.1 for the benefit U/s 14 (2) of the DRC Act. Nazir to report regarding payment of the rent by the respondent as per the order dated 11/01/2007 passed under Section 15 (1) of DRC Act. Report of the Nazir be also called for 23/09/2011.
After due compliance, file be consigned to Record Room.
Announced in the open Court today on 28 Day of July, 2011 th (VINOD KUMAR GAUTAM) ADMINISTRATIVE CIVIL JUDGE cumADDITIONALRENT CONTROLLER:
(NORTH) TIS HAZARI COURT: DELHI.E. No. 12/09/06 Page No. 16 of 16