Delhi District Court
Through Her Lrs vs Smt. Krishna on 4 October, 2018
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IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No: 25682/2016
Smt. Ram Rati (Since Deceased)
W/o Late Sh. Phool Singh
Through Her LRs
(i). Sh. Ram Singh
S/o Late Sh. Phool Singh,
R/o WZ-475, Basai Darapur,
New Delhi-110015.
(ii). Smt. Sheela
W/o Sh. Om Prakash
D/o Late Sh. Phool Singh
R/o Vill. & P.O. Sikandarur
Distt. Gurugram, Haryana. .... Petitioner
VERSUS
Smt. Krishna
W/o Sh. Rawat Sharma
R/o WZ-209, Village Basai Darapur
New Delhi-110015. .... Respondent
Date of Filing : 30.01.2009
Date of Judgment : 04.10.2018
JUDGMENT
1. Brief facts of the present case are that on 30.01.2009, the petitioner filed this petition Under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') ARC No. 25682/2016 Ram Rati Vs Krishna -2- praying to this court to pass an order for eviction in favour of the petitioner and against the respondent/Tenant in respect of the premises i.e. one shop in the property bearing No. WZ-475, Basai Dara Pur, New Delhi-110015 as shown in red colour in the site plan attached (hereinafter referred to as 'tenanted shop').
2. It is averred by the petitioner that the petitioner let out the tenanted shop to the respondent in November, 2003 for commercial purposes on rent @ Rs. 500/- p.m. on oral agreement exclusive of electricity and other charges. The respondent has not paid the arrears of rent in respect of tenanted shop for the last more than three years till date and respondent is liable to pay arrears of rent w.e.f. 01.01.2005 onwards @ Rs. 1500/- p.m. It is further averred that petitioner served a legal demand notice on the respondent but the respondent did not comply with the notice and sent false and frivolous reply dated 15.05.2008 taking defence of ownership on the basis of false and fabricated documents.
It is submitted by the petitioner that the respondent in conspiracy with her son namely Shri Sanjay and some persons had prepared certain fabricated documents purporting to be executed by the petitioner in favour of the respondent which were never executed by the petitioner.
It is further submitted that in November, 2007 the tenanted shop adjacent to tenanted shop was vacated by another tenant Sh. Bansi Kabari and the respondent tried to take the forcible possession of that tenanted shop claiming herself to be ARC No. 25682/2016 Ram Rati Vs Krishna -3- the owner of the shop. Ultimately, the petitioner had to file a civil suit for Permanent Injunction against the respondent which was disposed of on 08.05.2008 and in counter blast to the aforesaid suit, the respondent had also filed a false suit for Specific Performance, Injunction and Possession.
It is alleged by the petitioner that the respondent has not paid the rent since January, 2005 and whenever petitioner approached the respondent for payment of rent, the respondent took the stance of previous finance which was taken by the son of the petitioner at the time when the wife of the son of the petitioner was hospitalized.
It is further averred that during relevant time, a sum of Rs. 50,000/- was taken as loan by the petitioner from the son of the respondent and in lieu thereof, the respondent took signatures of the petitioner on certain blank papers as security and Rs.1,93,925/- has already been paid to the respondent against said loan. Lastly, it is alleged that the respondent has not paid the entire arrears of rent with interest as per the provision of D.R.C Act in compliance with legal demand notice. As such, it is prayed that he may be evicted from the tenanted shop U/S 14(1)
(a) of DRC Act.
3. Written Statement was filed by the respondent (tenant) in response to the petition filed by the petitioner U/S 14 (1)(a) of D.R.C Act, 1958 inter-alia praying to the court to dismiss the present petition with cost.
In her written statement, the respondent inter-alia took the preliminary objections that the petitioner is not the owner of the ARC No. 25682/2016 Ram Rati Vs Krishna -4- tenanted shop.
It is alleged by the respondent that the petitioner has sold a portion of property no. WZ-475, Village Basai Darapur, Delhi, measuring 30 sq. yds. (out of total 125 sq. yds.) to the respondent which includes the shop in possession of respondent/property in suit (shop vacated by previous tenant named Sh. Bansi Kabari) and some portion from the room of the petitioner, vide General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession letter and Will all dated 28.12.2004 for a total consideration of Rs. 2,50,000/- and now after occupying the shop vacated by Sh. Bansi Kabari by breaking open the locks, petitioner is alleging herself to be owner of the entire portion already sold to the respondent.
It is further submitted that the respondent has already filed a suit for specific performance and for possession against the petitioner.
Correctness of the site plan is denied by the respondent as the same is not according to the site. It is alleged that the petitioner has trespassed in some portion of the property sold by her to respondent by breaking open the locks on the night of 30.12.2007 and the petition filed by the petitioner is not maintainable as there is no relationship of landlord and tenant.
It is further submitted that on 15.01.2004, the shop in question was taken on rent @ Rs.1500/- p.m. by the respondent from the petitioner and on 28.12.2004, the respondent had purchased the shop in question, the adjacent shop and some portion from the room in possession of the petitioner, total area measuring 30 sq. yds. (out of 125 sq. yds.) from the petitioner.
ARC No. 25682/2016 Ram Rati Vs Krishna -5- It is denied that the respondent has not paid the arrears of rent in respect of the tenanted shop for the last more than three years till date and the petitioner is legally entitled to get the rent for a period of last more than three years and as such, the respondent is liable to pay the arrears of rent w.e.f. 01.01.2005 onwards @ Rs.1500/- p.m. exclusive of electricity and other charges.
It is also denied that the petitioner got issued a legal notice through her counsel thereby terminating the tenancy of the respondent with immediate effect and the respondent instead of complying with the said notice has sent a false and frivolous reply dated 15.05.2008 taking false and frivolous defence of ownership on the basis of false, forged and fabricated documents.
It is further contended that respondent is owner of the tenanted shop and as such, the question of paying any rent does not arise at all.
4. Replication also filed by the petitioner reaffirming her stand as taken in the eviction petition.
5. The petitioner examined herself as PW-1 to prove her case. The petitioner/ PW-1 tendered her evidence by way of affidavit Ex. PW1/A and she relied upon the various documents Ex. PW-1/1 to Ex. PW-1/10. The documents relied upon by the petitioner are that:- Ration Card Ex. PW-1/1, Copy of electricity bill Mark- P1, water bill Ex. PW-1/3, MCD Tax receipt Ex. PW- 1/4, receipt showing balance Ex. PW-1/5, complaint dated ARC No. 25682/2016 Ram Rati Vs Krishna -6- 12.01.2008 Ex. PW-1/6, compliant dated 14.03.2008 Ex. PW- 1/7, legal notice date 15.03.2008 Ex PW-1/8, site plan Ex. PW- 1/9 and revenue record Ex. PW-1/10.
Petitioner also examined Sh. Bansi Lal as PW-2. He relied upon the document Ex. PW-1/7. PW-2 Sh. Bansi Lal was cross examined at length by Ld. Counsel for respondent. Thereafter, evidence was closed by the petitioner.
Respondent examined herself as RW-1. The respondent/RW-1 tendered his evidence by way of affidavit Ex. RW-1/A. RW-1 was cross examined at length by Ld. Counsel for petitioner.
Respondent also examined Sh. Sushil Sharma as RW-2 and he was also cross examined at length by Ld. Counsel for petitioner. Thereafter, respondent evidence was closed.
6. I have heard arguments advanced by both the Ld. counsels for the parties.
Learned counsel for the petitioner submits that legal demand notice Ex. PW-1/8 was served upon the respondent and reply thereof also filed by the respondent. He also submits that in para no. 11 of W.S., landlordship of petitioner as well as rate of rent is admitted by the respondent. He also submits that non payment of rent as alleged by the petitioner is also admitted by the respondent but the respondent has disputed the ownership of petitioner. Lastly, he relies upon certain judgments of Hon'ble High Court of Delhi in respect of ownership.
On the other hand, the learned counsel for the respondent admits that legal notice was received by the respondent and ARC No. 25682/2016 Ram Rati Vs Krishna -7- reply thereto was also given by the respondent but he submits that the petitioner is not the owner of the tenanted shop and the respondent is not her tenant in the tenanted shop. He further contends that the respondent is the owner of the tenanted shop and not a tenant. He also submits that one suit for specific performance is still pending before the Ld. Civil Court concerned and at the stage of Plaintiff's Evidence. During the course of arguments, Ld. Counsel for respondents admits that the respondent has not paid rent to the petitioner w.e.f. January 2005 as the respondent became the owner of the tenanted shop. He also admits that petitioner let out to the respondent and also admits the relationship of landlord-tenant between the petitioner and respondent. Lastly, he prays to the court to dismiss the present petition with cost.
LAW ON 14(1) (a):-
7. 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- (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 ARC No. 25682/2016 Ram Rati Vs Krishna -8- 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 whole arrears of legally recoverable rent within two months of service of legal notice upon the respondent given by the petitioner.
(i). RELATIONSHIP OF LANDLORD AND TENANT :-
8. Perusal of record shows that petitioner is claiming herself to be the landlady as well as the owner of the tenanted shop and she has claimed to have let out the tenanted shop @ Rs. 1500/- p.m. to the respondent in November, 2003 by way of oral agreement for commercial use.
On the other hand, the respondent has admitted in her W.S. that petitioner let out her on 15.01.2004 at the rate of rent of Rs. 1500/- and admitted to have started business of selling clothes in the tenanted shop. But the respondent has claimed that on 28.12.2004, she purchased the tenanted shop as well as other adjacent shop from the petitioner for a total sale consideration of Rs. 2,50,000/- after execution of certain ARC No. 25682/2016 Ram Rati Vs Krishna -9- documents by the petitioner and respondent.
9. It is expedient to discuss the case law which are as under:-
Sunil Kapoor vs Himmat Singh & Ors. CM(M) No. 1215/2007, decided on 29 January, 2010, it was observed that:-
"11. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das Vs. Narain Das AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. Thus in law, the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour."
It was further observed that :-
"14. Even otherwise, the Stamp Act and the Registration Act as applicable to Delhi were amended w.e.f. 24th September, 2001. After the said amendment an agreement to sell of immovable property where-under the possession of the premises is delivered in part performance, can only be by a registered document bearing the prescribed stamp duty i.e. on 90% of the total agreed sale consideration. Section 49 of the Registration Act was also amended. A plea of part performance in the absence of a registered document cannot thus be taken. The petitioner/defendant cannot thus protect his ARC No. 25682/2016 Ram Rati Vs Krishna -10- possession in part performance of the agreement to sell."
It was further observed that :-
"15. What follows is that even if the petitioner/defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the decree, if any, in favour of the petitioner, the petitioner has no ground in law to save his possession of the premises. The status of the petitioner would continue to be as before i.e. of a tenant whose tenancy has been determined.
16. Once that is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment. If that be so, there is no common question involved in the previously instituted suit for specific performance and the subsequently instituted suit for ejectment."
It was further observed that:-
"18. The Division Bench of this Court in Jai Singh Rana Vs. Mohinder Mohan Goel 1994 IV AD Delhi 582 was concerned with an interim injunction claimed by the plaintiff in a suit for specific performance against his eviction as a tenant from the premises subject matter of the agreement. The Division Bench observed that it might appear to be just that a tenant should not be allowed to be evicted pending a suit for specific performance and it may be said that this would cause serious hardship to tenant. The Division Bench however held that there can be no generalisation or presumption and laid down the approach to be followed in such cases as under:-
"(1) In every suit for specific performance and permanent injunction, if an interlocutory application is filed under Order 39 Rule 1 Civil Procedure Code for temporary injunction or for stay of the Rent Control case it will be necessary ARC No. 25682/2016 Ram Rati Vs Krishna -11- for the concerned Court to decide whether the tenant who is the petitioner in such an application has made out a prima facie case and whether the balance of convenience lies in staying the Rent Control Case (2) If indeed there is prima facie proof of the genuineness of the agreement of sale, the Court could consider the question of stay of the Rent Control case on merits. Even assuming that the Court came to the conclusion that a prima facie case was made out in favour of the tenant, the balance of convenience might not lie in granting stay of the Rent Control case. In such cases, the Court may even allow the rent control case to be decided and judgment and, decree pronounced but grant stay to the execution thereof, allowing the parties to complete the appeal against Rent Controller's decision or even the further appeal/revision as the case may be so that the whole exercise need not be commenced after the disposal of the civil suit for specific performance. (3)If, on the other hand, the tenant does not make out a prima facie case in regard to the genuineness of the agreement set up by him, there will, in our view, be absolutely no justification for interfering with the rent control proceedings. It all depends on how far the tenant has established the prima facie case about the genuineness of the agreement of sale setup by him. (4) If indeed the eviction is not stayed and the tenant is evicted and later the suit for specific performance and possession succeeds, there can be no difficulty in executing the decree in the civil suit and putting back the tenant-purchaser, in possession, after properly adjusting their rights."
In the facts of that case, the tenant was not found to have made out a prima facie case in his favour.
19. Similarly in Oriental Insurance Vs. Lakhanpal Pvt. Ltd. MANU/DE/1246/2000 also the Division Bench refused to injunct eviction proceedings (in that case under the Public Premises Act) during the pendency of the suit for specific performance of an agreement of renewal of lease and the only ARC No. 25682/2016 Ram Rati Vs Krishna -12- order which was granted was of restraining forcible dispossession.
20. Though the aforesaid two judgments of the Division Bench of this Court are on injunction application in suits for specific performance, but the principles laid down therein would apply here. The jurisdiction, if any, to stay eviction pending a suit for specific performance is of the court where the suit for specific performance is pending and the court where the suit for ejectment / eviction is pending ought not to restrain its hands merely because the suit for specific performance has been filed."
It was further observed that :-
"The said relationship is pleaded to have come to an end owing to the agreement of delivery of possession part performance and which by law was required to be registered. It has admittedly not been registered. The relationship of the landlord and tenant thus cannot be said to have come to an end."
In another case titled as G. Ram vs Delhi Development Authority 2002 VIIAD Delhi 241, it was observed that:-
"14. An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under Section 54 of the Transfer of property Act read with Section 17 of the Indian Registration Act."
In another case titled as Mohd. Hanif vs Shamsun Nisa(Decd.) Thr Lrs in RC.REV. NO. 273/2010 decided on 19 October, 2011, it was observed that :-
ARC No. 25682/2016 Ram Rati Vs Krishna -13- "7. After having given my thoughtful consideration to the rival submissions and going through the impugned order I find that there is no merit in this revision petition and the same is liable to be dismissed. The main plea raised before the learned Additional Rent Controller as well as before this Court was that there was an agreement between the deceased landlady and the petitioner for sale of the premises in question to him and, therefore, the landlord-tenant relationship between the parties had ceased to exist and his possession was protected under Section 53-A of the Transfer of Property Act even if no formal sale deed was executed. However, in my view this plea could not be entertained and has been rightly rejected for the reason that when leave to contest application was filed within the stipulated prescribed period of 15 days no such plea was taken at that time by the petitioner in his affidavit. Under Section 25-B(4) of the Act a tenant seeking leave to contest the eviction petition is supposed to file an affidavit disclosing such facts which would disentitle the landlord from obtaining the order of eviction in case those pleas are established. This provision of law does not contemplate that additional pleas can also be raised by way of additional affidavit after the expiry of original period of 15 days. The Rent Controller is expected to decide leave to contest application based on the pleas raised in the affidavit of the tenant filed within the prescribed period of 15 days.In case the contention of the learned counsel for the petitioner - tenant is accepted that an additional affidavit can be filed after filing of the first affidavit within the prescribed period of 15 days then that would be an unending process and that would defeat the very purpose of enacting a provision like 25- B(4). I, therefore, do not find any illegality committed by the learned Additional Rent Controller for not granting leave to contest to the petitioner - tenant on the ground that there was an Agreement to Sell in respect of the premises in question between the petitioner - tenant and the deceased landlady. However, I am also of the view that the learned Controller should not have given ARC No. 25682/2016 Ram Rati Vs Krishna -14- any findings in respect of the alleged agreement to sell being relied upon by the petitioner. So, if at all the petitioner decides to have recourse to some legal remedy for the enforcement of the sale agreement the observations made in respect thereof shall not come in his way."
10. Perusal of record clearly shows that the respondent has herself admitted that she was let out by the petitioner herself.
11. It is well settled that a tenant is not allowed to challenge the title of the landlord during the continuancy of the tenancy in view of Section 116 of Indian Evidence Act.
If the tenant wants to challenge the ownership of the landlord, he/she can do so, but only after vacating the tenanted premises. But in the present case, the respondent/tenant is still in the possession of tenanted shop. As such, she can not challenge the title of the petitioner. Furthermore, the respondent has herself admitted that the relationship of landlady and tenant existed between the petitioner and respondent at the time of commencement of tenancy.
It is well settled law that for the purpose of Section 14(1)
(a) of DRC Act, the landlord is not supposed to prove his/her ownership of the tenanted premises but he has to merely prove that he/she is the landlord of the tenanted premises and in the present case it is admitted and also proved on record that there exist relationship of landlord and tenant between the petitioner and respondent. Furthermore, it is claimed by the respondent that she became the owner of the tenanted shop in December, 2004 as it was sold out by the petitioner to her.
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12. I have carefully gone through the record as well as testimonies of all the witnesses on record.
It is well settled proposition of law that Rent Controller is not supposed to decide the title of the parties in rent proceedings. He is duty bound to determine whether there exists the relationship of landlord-tenant between the parties or not.
In the present case, the respondent has claimed that she has become owner of the tenanted shop in December, 2004 and she has also filed the suit for specific performance before the civil court concerned. It is certainly the jurisdiction of civil court to decide the claim of the respondent whether she became the owner of the tenanted shop or not in December, 2004 and Rent Controller is not empowered to decide it.
As such, in view of material on record, testimonies of witnesses and settled propositions of law as mentioned earlier, ingredient in respect of relationship of landlord-tenant between the parties is satisfied.
(ii). SERVICE OF LEGAL DEMAND NOTICE :-
13. Perusal of record shows that the petitioner has claimed to have served the legal demand notice dated 15.03.2018 Ex. PW1/8 on the respondent and petitioner has also claimed that the respondent sent a false and frivolous reply dated 15.05.2008 taking false defence of ownership on the basis of false documents.
ARC No. 25682/2016 Ram Rati Vs Krishna -16- On the contrary, the respondent has admitted the claim of the petitioner in respect of service of legal demand notice Ex.PW1/8 as well as giving of reply thereto.
14. I have carefully and minutely gone through the material on record and found that the petitioner has nowhere averred in the petition the way or means by which the legal demand notice was served upon the defendants. The list of documents does not have any sort of registered postal receipt or any kind of receipt which shows the service of legal demand notice i.e. Ex.PW1/8. Furthermore, the petitioner has claimed to have received the reply dated 15.05.2018 to the legal demand notice but the petitioner has not placed on record any such reply to legal demand notice.
But the record shows that the service of such legal notice Ex.PW1/8 has been admitted by the respondent herself in para 18(b) of the W.S. that she had received such notice Ex. PW1/8 and she has also admitted to have given reply to aforesaid legal notice.
As such, the material on record clearly shows that petitioner has been able to prove the service of legal demand notice Ex. PW1/8 on the respondent.
15. Section 14(1)(a) clearly mandates that petitioner/landlord has to serve a legal demand notice on the respondent/tenant before filing of the eviction petition U/S 14(1)(a) of DRC Act. As such, in my view as discussed earlier, the ingredient in respect of service of legal demand notice has been satisfied by the petitioner.
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(iii). NON PAYMENT OF LEGALLY RECOVERABLE RENT :-
16. Perusal of record shows that petitioner has claimed that respondent has not paid rent w.e.f. 01.01.2005 onwards @ Rs.1500/- p.m. On the other hand, the respondent has also admitted to have not paid the rent w.e.f. 01.01.2005 but the claim of the respondent is that she became owner in December, 2004 in the tenanted shop as a result of which, she was not required to pay the rent after 01.01.2005. On the other hand, the petitioner has refuted the claim of the respondent in respect of her ownership in December, 2004.
As discussed earlier, the Rent Controller is not supposed to decide the title of the parties in rent proceedings. He is merely to determine whether there exists relationship of landlord-tenant between the parties or not.
Although, the respondent has claimed to have filed the suit for specific performance and possession before the Ld. Civil court concerned but she has not placed on record the status of the aforementioned case. As such, keeping in view the material on record and also well settled proposition of law as mentioned earlier it is proved that the respondent has not paid the rent w.e.f. 01.01.2005 but since petitioner is entitled to arrears of legally recoverable rent only i.e. three years prior to filing of petition, the petitioner is entitled to arrears only w.e.f. 30.01.2006 onwards as eviction petition was filed on 30.01.2009.
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CONCLUSION:-
17. 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 shop i.e. one shop in the property bearing No. WZ-475, Basai Dara Pur, New Delhi-110015 as shown in red colour in the site plan Ex. PW-1/9 attached with the petition.
18. Record shows that no order was passed U/S 15(1) of DRC Act by my Ld. Predecessor. As such, an order U/S 15(1) of DRC Act is passed directing the respondent to pay or tender the rent @ Rs.1500/- per month w.e.f 30.01.2006 till date within one month from today along with 15% simple interest and he is further directed to pay or tender the future rent at the same rate on or before the 15th day of each succeeding English Calendar month.
19. Nazir is directed to report on 29.01.2019 in respect of compliance of Order U/S 15(1) DRC Act.
20. Miscellaneous file be created for the purpose of benefits U/S 14(2) of DRC Act and this file be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open court AJAY by AJAY NAGAR on 4th October, 2018. NAGAR Date: 2018.10.04 17:39:10 +0530 (This judgment contains 18 pages) (AJAY NAGAR) Commercial Civil Judge-cum-
Additional Rent Controller, West District, THC, Delhi.
ARC No. 25682/2016 Ram Rati Vs Krishna