Delhi District Court
Sh. Vinod Kumar Joshi vs Sh. Sri Krishan on 4 December, 2007
IN THE COURT OF SH. BHUPESH KUMAR : ADDL. RENT
CONTROLLER : KARKARDOOMA COURTS DELHI.
Suit No. E 180/04
In the matter of :-
Sh. Vinod Kumar Joshi
s/o Sh. Ballu Singh
R/o H. No. A-31/103-D,
Road No. 66, Gali No. 1,
Mata Mandir, Moujpur,
Delhi-110053.
....... Petitioner
Versus
Sh. Sri Krishan
S/o Sh. Kanshi Ram
R/o H. No. A-31/132, Gali No. 5,
Mata Mandir, Moujpur,
Delhi-110053.
....... Respondent
Date of Judgment : 04.12.07 Date of Instt. of petition : 04.11.04 Date of reserve of order : 11.10.07
1. The petitioner has filed the present petition U/s 14(1)(a), 6A, 7 and 9 of DRC Act against the respondent. At the initial stage on the basis of statement made by Ld. Counsel for petitioner the petition on the ground of Section 7 and 9 of DRC Act was allowed to be withdrawn by my ld. Predecessor of the Court. However, the petitioner proceeded with the petition U/s 14(1)(a) & 6A of DRC Act.
2. It was submitted in the petition that the petitioner is landlord of shop No. A-31/103-D, Road No. 66, Gali No. 1, Mata Mandir Moujpur, Delhi-110053 and has rented out the same to the respondent for commercial purpose. Initially, the rate of rent was Rs. 300/- p.m. without roof rights and water and electricity charges. In the month of July, 03 in view of mutual understanding between the petitioner and the respondent rate of rent was enhanced to Rs. 2500/- p.m.. The respondent has failed to make the payment of rent to the petitioner despite repeated request and demands since 1.7.03 @ Rs. 2500/- p.m. as settled. The present market rate of rent is rs. 4000/- p.m. Since 1.7.03 the respondent has neither paid the revised increased rent @ Rs. 2500/- p.m. nor paid the previous rent since 1.7.03 @ Rs. 300/- p.m. without electricity and water charges after repeated request and demands for which demand notice dt. 13.7.04 was issued to the respondent, which was replied by the respondent on false and fabricated grounds. But no rent was paid by the respondent. On the basis of these submissions prayer was made to pass an eviction order against the respondent in respect of suit premises.
3. The respondent contested the petition and filed the written statement, wherein, he has inter alia, taken the preliminary objections that the petition is not maintainable as the same has been filed in order to increase the rent un- lawfully in contravention with the provision of DRC Act. No cause of action arose in favour of the petitioner and the petition is liable to be dismissed U/o 7 Rule 11 CPC.
On merits, the landlord-tenant relationship was not denied. However, it was denied that the shop in question was without electricity and water charges. It was denied that the rate of rent is Rs. 2500/- p.m. It was also denied that any agreement was arrived between the petitioner and the respondent regarding enhancement of rent from Rs. 300/- to Rs. 2500/-, excluding electricity and water charges. It was further submitted that till date the rent is Rs. 300/- p.m. only. It was further denied that in the month of July, 03 it was decided between the parties that the respondent will pay increased revised rent @ Rs. 2500/- on the first day of each calendar month. It was denied that at present the rented value is about Rs. 4000/- p.m. It was denied that the respondent failed to make payment to the petitioner despite repeated requested and demand since 1.7.03 @ Rs. 2500/- p.m. It was submitted that question of paying Rs. 2500/- p.m. as alleged does not arise at all since the rate of rent is Rs. 300/- p.m. including electricity and water charges. The petitioner has not accepted the rent tendered by the respondent and the respondent was constrained to deposit the rent in the Court from July, 03 to October, 04 @ Rs. 300/- p.m. The receipt of notice was not denied. However, it was further submitted that the respondent has replied the said notice on 6.9.04. ON the basis of these submissions prayer was made to dismiss the petition of the petitioner.
4. Replication was filed by the petitioner wherein the averments made in the written statement have been generally denied and those made in the petition have been reiterated and reaffirmed.
5. After completion of pleading order U/s 15(1) of DRC Act dt. 11.8.05 was passed thereby directing the respondent to pay to the petitioner or deposit in the Court the entire arrears of rent @ 300/- p.m. w.e.f. November, 04 till that date within one month and to continue to pay or deposit future rent at the same rate, month by month, by 15th of each succeeding month.
6. Petitioner as PW1 lead his evidence by way of affidavit who deposed in his evidence on the lines of his petition. He also proved documents viz. Sale deed Ex. PW1/A, site plan Ex. PW1/B, rent agreement 14.11.03 Ex. PW1/C, rent agreement 7.8.04 Ex. PW1/D, legal notice 13.7.04 Ex. PW1/E, postal receipts Ex. PW1/F and Ex. PW1/G. During cross examination the witness submitted that the property in question was purchased by him from his wife Smt. Munesh on 26.2.03. Sh. Rajpal and Vijay pal were the co-owner of the property before his wife has purchased the same in the year 2000/01. There was only ground floor in the above said property when my wife purchased and it was single storied building. Sh. Pawan Jain, Sri Kishan, Irfan ul haw and Mukesh were the tenants in the said property. The first floor and second floor accommodation was constructed by his wife before the same was purchased from her. He used to collect rent on behalf of his wife from all the tenants in the property. After the purchase of the property he started collecting the rent. He has already collected the rent from the respondent upto July, 03 @ Rs. 300/-. Sh. Pawan Jain lastly paid him rent @ Rs. 400/- p.m. Sh. Mukesh Kumar was tenant in the property in question when he purchased the same @ Rs. 4000/- p.m. Sh. Irfan also used to pay the rent @ Rs. 300/- p.m. to the earlier owner. Ex. PW1/B is the site plan and the same is correct. Sh. Virender Kumar proprietor of Sunny Auto is auto helpline is tenant in adjacent property. The correct measurement of the shop under the tenancy is front of 6.5 feet other wall of the same is 11.5 and 10.5 feet i.e. right and left respectively and the same is curve shape. Nothing was reduced in writing when the rent was increased by the respondent from Rs. 300/- to 2500/- p.m. It was July, 03 when the respondent increased rent. Sh. Babu Khan and Mukesh was also present at that time. Also increased the rent of Sh. Pawan Jain and Sh. Irfan with whom the litigation is going on. He is paying house tax to the concerned department in regard to the property in question since he has purchased the same. No additional alteration has been carried out by him in the disputed shop. The photocopy of rent receipt dt. 18.9.03 issued by him to the respondent which bears his signature at point X and the same is Ex. PW1/R1. It was suggested to the witness that since 1.7.03 he malafidely refused to accept the rent but this suggestion was denied. It was further suggested to the witness that the rent from period July, 03 to October, 03 was tendered by the respondent to him personally. But it was denied. The rent for the said period was also not tendered through money order. It was suggested to the witness that he refused to accept the rent sent by the respondent through money order but this suggestion was also denied. He attended the proceedings U/s 27 of DRC Act and filed objections before the concerned court. It was further suggested tot eh witness that he has filed the present petition to compel the respondent to vacate the suit premises and further he is not entitled to recover the rent @ Rs. 2500/- p.m from the respondent since 1.7.03 which was denied. He was tenant in the property in question in respect to two shop prior to purchase the property in question by his wife. HE used to pay rent to the earlier landlord in respect of Rs. 300/- p.. for one shop and Rs. 400/- p.m. for another shop. His tenancy was created prior to creation of respondent tenancy. He cannot tell the date, month or year when his tenancy or tenancy of respondent was created. He is recovering the rent from Babu Khan @ Rs. 500/- p.m. He does not issue rent receipt to Babu Khan. He do not have any documentary proof w.r.t. to tenancy of Sh. Babu Khan, Mukesh Kumar and Satbir. It was further suggested to the witness that respondent is not liable to pay the rent to him more than Rs. 300/- p.m. but this suggestion was denied.
7. Evidence of PW2, Babu Khan was lead by way of affidavit. His examination in chief was lead by way of affidavit wherein he deposed to the effect that he got one shop on rent without any rent agreement from Vinod Joshi @ Rs. 5000/- p.m. The property is situated on main road no. 66 and the same is high commercial rented value of all the shops. During cross examination he submitted that he cannot tell the exact measurement of his tenanted shop nor he can give the exact date, month and year when his tenancy was created. Nothing was reduced in wiriting when the tennacy was created. The landlord does not issue rent receipt to him. He is not in position of documentary proof w.r.t. To rate of rent @ Rs. 5000/- p.m. He is not in position of document proof w.r.t. possession of the shop except the visiting cards. He has not obtained any license from MCD for running business in the tenanted shop. He is income tax payee. He maintain books of accounts in respect of his business. It was suggested to the witness that he is not tenant in the shop but it was denied. He cannot identify the tenanted shop in the site plan Ex. PW1/B There is shop of Mulla ji beside the shop of respondent on front side of property in question. The length of the shop is equal to the size of shop of the respondent. He do not know the rate of rent of respondent in respect of his tenanted shop.
8. PW3 is Mukesh Kumar. His evidence was lead by way of affidavit wherein he deposed to the effect that he is tenant in respect of one shop without any agreement @ Rs. 4000/- p.m. with the landlordship of Sh. Vinod Joshi. The property is situated on the main road no. 66 and the same is high commercial rented value area. During cross examination witness submitted that he has no relation with the petitioner except the relationship of tenant. He do not remember the date, month and year when his tenancy was created. Nothing was reduced into writing at that time. The petitioner does not him any rent receipt. He is running photostudio in tenanted shop and maintains books of account. He is not in position of documentary proof w.r.t. rate of rent @ Rs. 4000/- p.m. It was suggested that Vinod Joshi is the proprietor of Joshi Photo Studio, but this suggestion was denied. PE was closed.
9. The respondent examined himself as RW1 and has proved the certified copy of DR no. 180/04 and the order as Ex. RW1/1 and RW1/2. During cross examination the witness submitted that the dispute shop is situated on main road no. 66 but he does not know if the said road is commercial or not. There is one public Sr. Secondary School on the said road, There are some Motorcycle showrooms on the said road. Earlier there was a TV showroom. It was suggested to the witness that there was settlement between the petitioner and him and he agreed to pay future rent @ Rs. 2500/- p.m. w.e.f. 1.7.03, but this suggestion was denied. It was suggested tot eh witness that he has paid rent to the petitioner in respect of the shop w.e.f. 1.7.03 to next 12 months. Demand notice ex. PW1/E was received by him. Reply dt. 6.9.04 was sent by him to the said notice. The same is Ex. RW1/P1. It was suggested to the witness that he has neither paid nor tendered to the witness despite service of demand notice Ex. PW1/E. HE tendered the rent to the petitioner w.e.f. 1.7.03 upto date of receipt of notice but petitioner did not accept the same. He tendered the rent to the petitioner for the month of July, August, September October and November,03. He did not serve any notice to the petitioner when he refused to accept the rent from him. Further he tendered the rent for the month of December,03, January, February and March'04 to the petitioner. He is running auto part with lubricant business in the shop and he has one mistry and helper for the said shop. The business is under the name and style of Sunny Auto is being run. RE was closed.
10. I have heard the arguments of ld. counsel for both the parties besides going through the material available on record.
11. To succeed in the case U/s 14(1)(a) of Delhi Rent Control Act the landlord / petitioner is required to prove the following ingredients :-
a. Relationship of landlord and tenant. b. Service of notice of demand for the arrears of rent by the landlord upon the tenant; and c. Existence of arrears of rent legally recoverable on the date of service of notice of demand. d. Non payment / tender of the whole of the arrears of rent legally recoverable from the tenant within two
months of the service of the notice of demand.
12. The relationship of landlord and tenant has not been disputed in the present matter. The same does not require much deliberation.
13. Service of legal notice dt. 13.7.04 Ex. PW1/E is also not disputed as the respondent has replied the same vide reply Ex. RW1/P1.
14. Now coming to the aspect whether there was arrears of rent on the date of service of legal notice upon the respondent. The fact as to whether there was any arrears of rent depends upon two facts i.e. :-
i) what is the rate of rent; and
ii) from which date the same is due.
First coming to the aspect of rate of rent. Regarding rate of rent the petitioner in the notice Ex. PW1/E has demanded the arrears of rent w.e.f. 1.7.03 @ Rs. 2500/- p.m. on the basis of mutual agreement. The petitioner has filed the petition on similar lines and thereafter when he appeared in the witness box he deposed on the similar lines that the exact rate of rent is Rs. 2500/- p.m. w.e.f. 1.7.03. As matter of record the petitioner has not brought on record any document viz. Rent agreement, rent receipt or any other document showing that the respondent had ever paid the rent @ Rs. 2500/- to the petitioner in view of mutual agreement dt. 1.7.03. Petitioner during cross examination staes that the coversation regarding the enhancement of rent took place between him and the respondent at his shop and Sh. Babu Khan and Mukesh Kumar were present at that time. Mr. Babu Khan appeared in witness box as PW2 and Mukesh Kumar appears as witness as PW3. Babu Khan in his examination in chief has simply stated to the effect that he is tenant of petitioner @ Rs. 5000/- p.m. But he has not uttered a single word regarding the rate of rent of the tenanted shop in the possession of the respondent or that the mutual agreement regarding enhancing of rent from Rs. 300/- to Rs. 2500/- p.m. was effected in his presence. On the other hand, during cross examination this witness in unmistakable terms has deposed that he does not know the rate of rent of respondent in respect of his tenanted shop. It clearly transpires that the evidence of this witenss to this extent is not corroborating with the evidence of the petitioner that the mutual agreement took place, inter alia, in presence of Sh. Babu Khan. The another witness in whose presence the petitioner claims to entered into mutual agreement is Mr. Mukesh Kumar who was examined as PW3. Like PW2, PW3 Mukesh Kumar also kept silent and has also not uttered even a single word that the mutual agreement between petitioner and the respondent took place in his presence. The respondent from the very inception that is at the time of reply notice has denied the enhancement of rent tot he tune of Rs. 2500/- from Rs. 300/- p.m. As per the contention in the pleading and later on in the evidence the admitted rate of rent earlier to 1.7.03 was RS. 300/- p.m. and the same was even admitted by the respondent. The petitioner has proceeded with the petition U/s 14(1)(a) & 6A of DRC Act. Section 14(1)(a) of DRC Act is with regard to claiming the arrears of rent. Here it is necessary to re-produce Section 6A as well as 8 of DRC Act which is as under : -
6A. Revision of rent. -- Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenancy, may be increased by ten percent, every three years.
8. Notice of increase of rent. -
(1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and in so far as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.
(2) Every notice under sub-section (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in section 106 of the Transfer of Property Ac, 1982 (4 of 1882).
The combined reading of Section 6A r/w Section 8 of DRC Act suggest that rent can be enhanced after the expiry of three years provided the landlord, with the intention to increase the rent has issued a notice in writing to the respondent thereby showing his intention to increase the rent and that too after expiry of one month, of service of such notice, the rent stands enhanced automatically.
15. In the instant case the receipt of notice Ex. PW1/E sent by the petitioner to the respondent perused carefully. In the said notice the petitioner has claimed the enhanced rent from Rs. 300/- to Rs. 2500/- w.e.f. 1.7.03 on the basis of the mutual agreement. As discussed above in view of the Section 6A of DRC Act only 10% of the rent can be enhanced after every three years but in view of Section 8 of DRC Act written notice is required. But in the said notice the landlord must mention his intention to enhance the rent lawfully under this Act i.e. in view of Section 6A of DRC Act. The essential ingredient i.e. viz. Intention to increase the lawful rent in view of Section 6A is missing in the notice. Therefore, the notice Ex. PW1/E is not a valid notice for the purpose of increasing the rent to the tune of 10%.
This discussion leads to the conclusion that the rate of rent is Rs. 300/- p.m. Further, the petitioner has failed to prove that the rate of rent was enhanced from Rs. 300/- to Rs. 2500/- p.m. w.e.f. 1.7.03.
16. The next necessary ingredient is that from which date the arrears of rent is due. The petitioner has claimed the arrears of rent w.e.f. 1.7.03 in view of notice Ex. PW1/E posted on 13.7.04. On the other hand the respondent has deposited the rent w.e.f. July, 03 to October, 04 @ Rs. 300/- in Court U/s 27 of DRC Act and proved the copy of the same as RW1/1. The said DR was filed on 25.9.07. It reveals that the rent was deposited by the respondent in the Court after the notice Ex. PW1/E was issued and received by the respondent which transpires that the respondent was in arrears of rent w.e.f. 1.7.03, when the notice Ex. PW1/E was issued.
17. The next ingredient is whether the respondent has paid/tendered whole of the arrears of rent within two months after the service of legal demand notice. In this regard, the material on record is perused carefully. The demand notice is Ex. PW1/E dt. Nil but posted on 13.7.07 in view of the postal receipt Ex. PW1/F and UPC Ex. PW1/G. Vide said notice the respondent was asked to make the payment of rent w.e.f. 1.7.03 @ Rs. 2500/- p.m. and total a sum of Rs. 32,500/- were demanded. In the said notice it is further mentioned that the respondent has not paid the rent at the increased rate of rent @ Rs. 2500/- p.m. or at the earlier rate of rent i.e. Rs. 300/- p.m. The petitioner has not specifically called upon the respondent to make the payment @ Rs. 300/- p.m. Now the question arises whether in these eventualities legal demand notice Ex. PW1/E became a defective notice. In case Raj Rani vs. Gian Chand, 1986, Raj. LR 284 Delhi, it was hold by the Hon'ble High Court that the notice of demand of arrears of rent is not defective on account of wrong claim of rent or error of period. The tenant shall tender or pay the arrears which he consideres to be due. In case H.M. Dayal and Co. vs. Ram Nath, AIR 1986 101, Hon'ble High Court hold that the only duty cast upon the landlord is to send the notice demanding arrears of rent. Act does not require that the notice of demand shall state the amount due from the tenant. A notice of demand may not mention the amount at all. It may simply ask the tenant to pay the arrears, which he has not paid. As soon as a notice of demand is served, it is the duty of the tenant to pay such amount as he thinks is due from him and if ultimately it is found that the amount paid by the tenant was the correct amount, the landlord's petition for eviction will be dismissed.
In the instant case the petitioner has demanded the arrears of rent w.e.f. 1.7.03 @ Rs. 2500/- p.m. instead of Rs. 300/- p.m. but the wrong claim of rent does not makes the demand notice defective in view of the findings of the above said judgment. Therefore, the notice is found to be valid notice. As per respondent he has deposited the rent in the Court vide DR petition Ex. RW1/1. But as matter of record the said DR was filed on 25.9.04. The notice was posted on 13.7.04 vide postal receipt Ex. PW1/F and UPC Ex. PW1/G. Both the parties are residing at Delhi. In common course the notice might have been received by the respondent within 4-5 days and if it is presumed that the notice might have been served on 17/18 then in view of the provison of DRC Act the respondent was supposed to deposit arrears of rent legally recoverable within two months. The arrears claimed by the petitioner in notice was not time barred meaning by the arrear of rent was legally recoverable. The respondent has filed the DR petition Ex. RW1/1 on 25.9.07 which reveals that the notice of demand was not complied within two months.
In view of aforesaid discussions, the court is of the view that the petitioner has been able to prove his case U/s 14(1)(a) of DRC Act. Order U/s 15(1) of DRC Act has already been passed in present case. The same does not require any modification.
18. Put up for considering the entitlement of the respondent to the benefit of Section 14(2) of DRC Act on 8.1.08. Report of Naib Nazir also be called for the said date.
(BHUPESH KUMAR) ADDL. RENT CONTROLLER Announced in the open court KKD COURTS, DELHI. On 4.12.07