Delhi District Court
Sh. Harish Chand Chhabra vs Sh. Ram Kumar on 23 December, 2017
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
ARC No: 25847/2016
Sh. Harish Chand Chhabra
S/o Late Kanhiya Ram,
R/o Q-6, 2nd & 3rd floor,
Vikas Vihar, Manas Kunj Road,
Uttam Nagar,
New Delhi-110059. ... Petitioner
VERSUS
Sh. Ram Kumar
S/o Late Sh. Rameshwar
R/o Q-6, Vikas Vihar,
Manas Kunj Road,
Uttam Nagar,
New Delhi-110059.
Also At:-
D-11, Bhagwati Vihar,
Sector-1, Uttam Nagar,
New Delhi-59. .... Respondent
Date of Institution : 13.02.2015.
Date of Judgment : 23.12.2017.
JUDGMENT
1. Brief facts of the present case are that on 16.02.2015, the petitioner filed a petition Under Section 14 (1) (a) of the Delhi Rent Act, 1958 praying to this court to direct the respondent to pay the monthly rent with arrears of rent w.e.f. October, 2013 @ Rs. 385/- per month and damages at market rent i.e. Rs.7,000/- per month from the date of termination of tenancy till date. And ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 1 /18 he also prayed to the court that in case respondent failed to do so, an order for eviction of the tenanted premises i.e. shop situated in property No. Q-6, Vikas Vihar, Manas Kunj Road, Uttam Nagar, New Delhi-110059 more specifically shown in red colour of the site plan (Ex.PW1/A), in favour of the petitioner and against the respondent, may be passed with cost of petition.
2. It is averred that on 15.02.1988 the petitioner let out one shop at Q-6, Vikas Vihar, Manas Kunj Road, Uttam Nagar, New Delhi specifically shown in red colour in the site plan having the dimension of 8 x 10 at monthly rent of Rs.350/- per month excluding electricity charges. It is also submitted that now monthly rate of rent is Rs.385/- per month since October, 2013.
It is further averred that respondent had paid rent of said shop till October, 2013 and thereafter whenever it was demanded by the petitioner, respondent flatly refused to pay the same.
It is further averred that respondent has neither paid nor tendered the arrears of rent w.e.f. October, 2013 till date excluding electricity charges despite repeated demands by petitioner.
It is also alleged that whenever petitioner demanded the arrears of rent and vacate the tenanted premises the respondent threatened him for dire consequences.
It is averred by the petitioner that the petitioner served a legal notice dated 13.11.2014 upon the respondent through his counsel calling upon the respondent to vacate and hand over physical possession of the tenanted premises to the petitioner ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 2 /18 and to pay arrears of rent w.e.f. October, 2013 and damages at market rate but despite the service of legal notice, the respondent failed to hand over the vacant physical possession of the tenanted premises to the petitioner.
As per the averment of petitioner the purpose of letting out of the tenanted premises was mixed land use.
It is averred by the petitioner that the monthly rent of the aforesaid tenanted premises was Rs. 350/- per month excluding electricity charges. He also submits that at present monthly rate of rent is Rs.385/- per month w.e.f. October, 2013.
The petitioner submitted that the tenanted premises was let out to the respondent on 15.02.1988.
The petitioner has not mentioned in his petition about the ownership of the premises but he has mentioned his name against the column in respect of name and address of the landlord.
3. Written Statement was filed on 07.03.2015 by the respondent (tenant) in response to petition filed by the petitioner U/S 14 (1)(a) of D.R.C Act, 1958 praying to the court to dismiss the present petition with heavy cost.
In his written statement, the respondent inter-alia took the preliminary objections that the present petition is nothing but a gross abuse of process of law as the petitioner had not only stated wrong and misleading facts but also has created a new story to deny and defy the rights of the respondent which may be proceeded U/S 340 Cr.P.C. for perjury.
It is also inter-alia averred that the present petition is liable to be dismissed U/O 7 R 11 CPC as it has no cause of ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 3 /18 action in favour of petitioner.
It is further claimed by the respondent that respondent has paid upto date agreed rent to the petitioner and there is no arrears of rent as claimed by the petitioner in this petition but despite receiving the uptodate agreed rent, the petitioner has stated wrong facts.
It is also averred that the respondent is in possession of the property and doing his business and never made any default in payment of agreed rent to the petitioner.
It is also averred that rent of a tenanted premises was increased by the petitioner in the year 2003 itself making it Rs.450/- per month and the respondent is paying it to the petitioner regularly.
It is also alleged that petitioner in order to harass, torture and create false and frivolous ground, regularly denied to receive the monthly rent on time not from the respondent but from other tenants also. It is also alleged that petitioner was never ready to receive monthly rent on time despite requests made by the respondent. It is also alleged that petitioner used to collect the rent, sometime of four months or three months or five months from the respondent and other tenants also.
In reply on merits, the respondent specifically denied that property is mixed used land. It is also averred that petitioner is confused about the status of the property as in para No. 4 petitioner is stating the premises as "mixed used land" but in very next para he is stating the premises as "non-residential".
It is averred by the respondent that there are total number of six shops at the mentioned address out of which one is let out to the respondent. Out of remaining shops, some shops are ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 4 /18 used by sons of petitioner for their own businesses.
It is specifically denied by the respondent that the monthly rent is Rs. 385/- per month w.e.f. October, 2013. It is submitted that rent of the tenanted premises was increased by the petitioner in the year 2003 itself making it Rs.450/- per month which the respondent is paying to the petitioner regularly. It is specifically denied by the respondent that the respondent paid the rent of the tenanted shop till October, 2013 and thereafter whenever it was demanded, respondent flatly refused to pay the same. The respondent reiterates that the petitioner was never ready to receive monthly rent on time despite requests made by the respondent. It is further averred that respondent has paid entire rent till February, 2015 and there is nothing arrear of rent as alleged by the petitioner.
It is specifically denied by the respondent that the petitioner served a legal notice 13.11.2014 upon the respondent and the respondent has not received any notice as alleged by the petitioner for which the petitioner may be asked to prove the averments.
It is specifically denied by the respondent that the respondent has a evil eye on the tenanted premises and he neither wants to vacate the same nor wants to pay the agreed monthly rent to the petitioner. The respondent reiterates that the respondent has already tendered the agreed rent to the petitioner till February, 2015 and there is no arrear or default as alleged by the petitioner. He also asserts that since there is no default on the part of respondent in paying the agreed rent, there is no requirement to vacate the premises.
ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 5 /184. Record reveals that no replication has been filed by the petitioner to the written statement filed by the respondent.
5. Record also reflects that no order U/S 15 (1) of DRC Act has been passed in the present case.
6. The petitioner has examined himself as PW1 to prove his case. The petitioner PW1 tendered his evidence by way of affidavit Ex.PW1/1 on 10.04.2017 and relied upon the documents Ex.PW1/A original site plan, Ex.PW1/B legal notice dated 13.11.2014, Ex.PW1/C postal receipts (colly.), Ex.PW1/D courier receipts (colly).
On the other hand, the respondent has not led any evidence despite ample opportunity given by the court.
During the cross-examination conducted by Ld. Counsel for the respondent, PW1 inter-alia deposed that he used to issue rent receipt at the time of payment of rent. He also claimed that it never happened that after the payment of rent receipt was thereafter issued. He admitted that he did not file on judicial file the counterfoil of issued rent receipt to the respondent. However, the same is with him right now. He further deposed that the respondent is paying the rent @ Rs.450/- per month excluding electricity charges. He claimed that he received rent from the respondent upto September, 2013 and thereafter the respondent did not pay the rent.
7. It is on record that no evidence at all has been led by the respondent despite opportunity given by the court. As such, respondent evidence was closed vide order dated 16.10.2017.
ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 6 /188. I have heard both the ld. Counsel for the parties. Ld. Counsel for the petitioner submits that everything is admitted by the respondent. He also submits that no evidence has been led by the respondent despite opportunity given by the court. Moreover, no documents are filed by the respondent. Ld. Counsel for the petitioner also submits that the legal demand notice was issued by the petitioner but tenant did not reply to the aforesaid notice. Ld. Counsel for the petitioner argues that tenant/respondent has repeated number of times that he has the rent receipt concerned but he did not file any receipt on record. It is also submitted by the Ld. Counsel for the petitioner that no notice was given by the respondent complaining for non- issuance of rent receipt by the petitioner.
9. On the other hand, the Ld. Counsel for the respondent submits that he could not file the rent receipt on judicial record as the same were not issued regularly by the respondent. Ld. Counsel for the respondent also claims to have not received any legal notice from the petitioner. Ld. Counsel on behalf of respondent submits that the respondent is still ready to pay the rent. Ld. Counsel for the respondent further submits that respondent could not file the document on the record as could not procure the document despite utmost effort.
10. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction-ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 7 /18
(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 court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
As such, the following are the ingredients of section 14(1) proviso (a) :-
(i)There should be a relationship of landlord and tenant between the parties.
(ii)There should be a non-payment or tendering of legally recoverable rent from tenant to landlord.
(iii)A notice of demand should be served on the tenant by the land lord.
(iv)The tenant should not have paid the arrears of rent within two months of service of such notice.ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 8 /18
SERVICE OF LEGAL DEMAND NOTICE:-
11. Perusal of Section 14 (1) proviso (a) clearly shows that before initiating the eviction proceeding before the rent controller under Delhi Rent Act, the landlord has to serve the notice demanding the payment of arrears of rent. And if the tenant does not pay or tender the rent within two months of service of such notice, the landlord becomes entitled to file eviction proceeding under section 14 (1) proviso (a) of D.R.C Act.
12. It is averred by the petitioner that the petitioner served a legal notice dated 13.11.2014 upon the respondent through his counsel calling upon the respondent to vacate and hand over physical possession of the tenanted premises to the petitioner and to pay arrears of rent w.e.f. October, 2013 and damages at market rate but despite the service of legal notice, the respondent failed to hand over the vacant physical possession of the tenanted premises to the petitioner.
13. On the other hand, It is specifically denied by the respondent that the petitioner served a legal notice 13.11.2014 upon the respondent. It is claimed by the respondent that the respondent has not received any notice as alleged by the petitioner for which the petitioner may be asked to prove the averments.
14. It is pertinent to reproduce the section 27 of General clauses Act which is as under :-
Section-27--Meaning of service by post-- where any central Act or Regulation made after the commencement of this Act authorizes or ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 9 /18 requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
In the case titled as K. Bhaskaran vs sankaran vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble supreme court observed :-
"The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
15. I have gone through the requisite documents filed by the petitioner Ex.PW1/B, legal notice Ex.PW1/C (colly) which reflects that the legal notice has been sent as per law and following the procedure. I have also gone through the evidence of PW1 (petitioner) wherein also the PW1 asserts that a legal notice 13.11.2014 was served upon the respondent through his Ld. Counsel calling upon the respondent to vacate and to pay arrears ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 10 /18 of rent w.e.f. October, 2013 and damages. During the cross-examination nothing has been extracted reflecting the non service of such notice. On the other hand also the respondent has not been able to refute the service of such legal demand notice. It is relevant to mention that no document was proved and no evidence was led by the respondent.
16. As such, one of the ingredients of 14 (1) (a) of DRC Act is satisfied.
RELATIONSHIP OF LANDLORD AND TENANT:-
17. The petitioner has not mentioned in his petition about the ownership of the premises but he has mentioned his name against the column in respect of name and address of the landlord.
On the other hand, the respondent has no where disputed the relationship of landlord and tenant between the petitioner and respondent.
It is well settled and principle of law that the admitted facts need not to be proved.
18. As such this ingredient of 14 (1) (a) DRC Act is also satisfied.
NON PAYMENT OF LEGALLY RECOVERABLE RENT :-
19. It is averred by the petitioner that the petitioner let out the tenanted premises in question at monthly rent of Rs.350/- per ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 11 /18 month excluding electricity charges. It is also submitted that now monthly rate of rent is Rs. 385/- per month since October, 2013.
It is further averred that respondent had paid rent of said shop till October, 2013 and thereafter whenever it was demanded by the petitioner, respondent flatly refused to pay the same.
It is further averred that respondent has neither paid nor tendered the arrears of rent w.e.f. October, 2013 till date excluding electricity charges despite repeated demands by petitioner.
It is averred by the petitioner that the petitioner served a legal notice dated 13.11.2014 upon the respondent through his counsel calling upon the respondent to vacate and hand over physical possession of the tenanted premises to the petitioner and to pay arrears of rent w.e.f. October, 2013 and damages at market rate but despite the service of legal notice, the respondent failed to hand over the vacant physical possession of the tenanted premises to the petitioner.
20. On the other hand, It is averred by the respondent that respondent has paid upto date agreed rent to the petitioner and there is no arrears of rent as claimed by the petitioner in this petition but despite receiving the uptodate agreed rent, the petitioner has stated wrong facts.
It is also averred that the respondent is in possession of the property and doing his business and never made any default in payment of agreed rent to the petitioner.
It is also averred that rent of a tenanted premises was ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 12 /18 increased by the petitioner in the year 2003 itself making it Rs.450/- per month and the respondent is paying it to the petitioner regularly.
It is also alleged that petitioner in order to harass, torture and create false and frivolous ground, regularly denied to receive the monthly rent on time not from the respondent but from other tenants also. It is also alleged that petitioner never ready to receive monthly rent on time despite requests made by the respondent. It is also alleged that petitioner used to collect the rent, sometime of four months or three months or five months from the respondent and other tenants also.
21. I have carefully examined the pleadings filed by both the parties i.e. eviction petition and written statement. I have meticulously perused the material on record.
22. I have come to the conclusion that the main ground of defence of the respondent against eviction petition is that he paid the agreed rent to the petitioner regularly but since the petitioner did not issue the rent receipt, the respondent could not file the rent receipts on judicial record. I have carefully perused the evidence of PW1 Sh. Harish Chand Chhabra and documents filed by the petitioner on judicial record. I do not agree to the contentions made by the respondent that he could not file the rent receipt as it was not issued by the petitioner. Even for the sake of arguments, it is accepted that the respondent refused to issue the rent receipt to the respondent/tenant, the respondent/tenant had recourse to the Section 26 of DRC Act which is reproduced as under:-
ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 13 /18"26. receipt to be given for rent paid (1) every tenant shall pay rent within the time fixed for contract or in the absence of such contract, by the 15th day of the month next following the month for which it is payable and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest @ 15% per annum from the date on which such payment of rent is due to the date on which it is paid.
(2) Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agents a written receipt for the amount paid to him, signed by the landlord or his authorized agent:
Provided that it shall be open to the tenant to remit the rent to his landlord by postal money order.
(3) If the landlord or his authorized agent refuses or neglects to deliver to the tenant receipt referred to sub section (2), the controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorized agent, by order direct the landlord or his authorized agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the cost of the application and shall also grant a certificate to the tenant in respect of the rent paid."
23. As such, Under Section 26 (2) of DRC Act, a tenant is entitled to obtain forthwith from the landlord a written receipt ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 14 /18 duly signed for the amount paid to him. It is evident that the legislator has provided the safeguards in case landlord refuses or neglect to deliver the rent receipt to the tenant. As per Section 26 (3) the tenant has a right to approach the controller by filing application within two months from the date of payment.
24. I have perused the material on record which reflects that respondent has not approached the controller complaining non- issuance of rent receipts by the landlord/petitioner to the respondent. He has not produced any record which reveals that such an application was filed by the respondent to the controller.
25. In my considered view, the respondent should have approached the rent controller for redressal of grievances in case the rent receipt was refused or neglected by the petitioner but he has been unable to do so. On the other hand, he has not given any plausible explanation for such an omission. As such, in my considered view, the respondent can not take the defence of refusal of issuance of rent receipt by the petitioner as he had the remedy against the grievances.
26. The second contention of the respondent is that respondent has paid upto date agreed rent to the petitioner and there is no arrears of rent as claimed by the petitioner in this petition but despite receiving the upto date agreed rent, the petitioner has stated wrong facts.
27. In respect of this contention, it is well settled that when a ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 15 /18 landlord/petitioner makes the allegations that rent has not been paid or tendered by the tenant, it is a duty of the tenant/respondent to refute the allegations of such non-payment by leading oral or documentary evidence.
28. It is also well settled law that when the petitioner files the petition under section 14(1) (a) of D.R.C Act for non-payment of rent, the onus is always upon the respondent /tenant to prove that he had paid the rent and there was no due against him at the time of service of legal demand notice served by the petitioner on the respondent/tenant.
29. I have gone through the material on record which reflects that the respondent has not led any evidence at all despite ample opportunity given by the court.
30. Perusal of the written statement reveals that one of the contentions of the respondent is that petitioner was never ready to receive monthly rent on time despite request made by the respondent and the petitioner used to receive collective rent from the respondent and other tenant also. In my view, this contention of the respondent does not have any substance as the respondent had the ample opportunity to deposit the rent U/S 27 of DRC Act in case the landlord did not accept any rent tendered by tenant but the record does not reflects that the respondent has deposited such rent with the controller U/S 27 of DRC Act.
31. The respondent also contends that the respondent could ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 16 /18 not file the rent receipts and other documents on record as he could not procure it despite efforts. The record reveals that the ample opportunity was given by this court to file the document on record but he has been unable to do so and no plausible reasons have been given by the respondent. As such, this contention of the respondent has no force. However, during the arguments advanced by the respondent it is submitted by the Ld. counsel for the respondent that respondent is ready to pay the rent.
32. As such, the respondent has been unable to prove that he has paid or tendered the rent as alleged by the petitioner.
33. In my view, this ingredient of Section 14 (1) (a) of DRC Act is also satisfied.
CONCLUSION:-
34. In view of the aforesaid discussion, this court has come to the conclusion that the petitioner has satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of the tenanted premises i.e. shop situated in property No. Q-6, Vikas Vihar, Manas Kunj Road, Uttam Nagar, New Delhi-110059 more specifically shown in red colour of the site plan Ex.PW1/A.
35. As such, an order under section 15(1) of the D.R.C. Act is passed directing the respondent to pay or deposit the rent @ Rs. 385/- p.m. w.e.f. October, 2013 till date within one month from today and to continue to pay or deposit the future rent by 15th of each succeeding English Calendar month.
ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 17 /1836. As such Nazir attached to this court is directed to file his report in respect of payment or deposit of rent under section 15(1) D.R.C. Act on 29.01.2018.
37. A separate file be maintained for the purpose of consideration on the aspect whether the respondents are entitled for the benefit of Section 14(2) of DRC Act or not.
38. This file be consigned to Record Room after due compliance.
Announced in the open court on 23rd December, 2017.
(This judgment contains 18 pages) (AJAY NAGAR) Commercial Civil Judge-cum-
Additional Rent Controller, West District, THC, Delhi.
ARC No. 25847/16 Harish Chand Chhabra vs. Ram Kumar Page 18 /18