Delhi District Court
Sh. Vijay Kumar vs Smt. Indu Jain on 7 June, 2014
IN THE COURT OF SHRI SANDEEP GARG :
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
E111/2013
Unique ID No: 02401C0379082012
In the matter of:
Sh. Vijay Kumar,
S/o Late Sh. Jai Narain,
R/o 4227, Arya Pura,
Sabzi Mandi, Delhi110007.
....Petitioner
Versus
Smt. Indu Jain,
W/o Sh. Pawan Kumar,
Shop No. 230231, Main Bazar,
Sabzi Mandi, Delhi110007.
Also at:
2553, Punjabi Basti, Sabzi Mandi,
Delhi110007.
.....Respondent
Date of Institution : 21.08.2012
Date of order when reserved : 07.06.2014
Date of order when announced : 07.06.2014
E111/2013 Page 1/11
J U D G M E N T :
1. Petitioner has filed the present eviction petition under Section 14 (1) (a) & (f) of Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act) against the respondent on 21.08.2012.
2. The brief facts of the case as narrated in the petition are that the respondent is a tenant under the petitioner in respect of the premises consisting of one shop bearing no. 230231, situated on the ground floor in the property bearing no. 229 to 232 & 234 to 237, situated in Ward No. XII, Main Bazar, Sabzi Mandi, Delhi110007, as shown in red colour in the site plan attached with the petition, belonging to the petitioner, at a monthly rent of Rs. 550/ excluding electricity and water charges. Earlier premises in question was used as shop for sale of bangles and artificial jewelery etc., but now the respondent has not been doing any business in demised shop and the demised shop is lying locked for last more than three years.
3. It is averred that originally the predecessorininterest of the respondent was already the tenant in the demised shop at the time when the property bearing no.229 to 232 and 234 to 237, situated in E111/2013 Page 2/11 Ward No. XII, Main Bazar, Sabzi Mandi, Delhi110007 was purchased by the father of the petitioner in the year 1967 and as such by operation of law, the said predecessorininterest of the respondent became tenant under the father of petitioner in the demised shop. The respondent failed to pay the arrears of rent, qua the demised shop, w.e.f. 01.04.2011 onwards to the petitioner and, therefore, the petitioner, through his counsel, got issued a legal notice of demand dated 16.02.2012 to the respondent calling upon her to pay arrears of rent qua the demised shop w.e.f. 01.04.2011 alongwith up to date interest @ 15% per annum, so accrued upon the arrears of rent, within two months from the date of service of that notice of the petitioner. The respondent is a habitual defaulter in making payment of rent qua the demised shop. Inspite the receipt of demand notice dated 16.02.2012, the respondent has neither paid nor tendered the arrears of rent @ Rs. 550/ per month w.e.f. 01.04.2011 alongwith interest @ 15% per annum and as such respondent has committed a default on her part. The respondent is liable to be evicted, under clause (a) of proviso to subsection 1 of Section 14 of the DRC Act from the demised shop. After service of the demand notice dated 16.02.2012, the respondent had remitted a sum of Rs. 4,950/ and Rs. 2,200/, totaling to Rs. E111/2013 Page 3/11 7,150/ on account of rent for the period from 01.04.2011 to 01.04.2012 by two postal money orders respectively to the petitioner, which were refused by him, as the respondent did not tender the rent alongwith interest accrued upon the arrears of rent @ 15% per annum through the said postal money orders to the petitioner within two months of service of said notice.
4. The demised shop has also become unsafe or unfit by human habitation and are bonafide required by the petitioner for carrying out the repairs, which cannot be carried out without the demised shop being vacated and, therefore, the respondent is liable to be evicted from the tenanted premises under the provisions of Section 14 (1) (f) of DRC Act.
5. The petitioner has prayed for an order of eviction of respondent from the demised shop and recovery of possession with costs in respect of demised shop under Section 14 (1) (a) & (f) of the D.R.C. Act.
6. Notice of the petition served upon the respondent through E111/2013 Page 4/11 her paternal aunt (Tai) by way of ordinary course on 01.09.2012. The notices sent at the address of tenanted shop and at Punjabi Basti, Sabzi Mandi, Delhi110007 were received back unserved with the report "door locked". It has been held by Hon'ble Supreme Court of India in the case of C.C. Alva Haji Vs. Palapetty Muhammed & Anr., III (2007) BC 533 (SC) that Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. Unless and until, the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. When a notice is sent by registered post and is returned with a postal endorsement of refusal or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. Respondent chose not to appear before the court and was proceeded exparte vide order dated 27.11.2012 and the matter was fixed for exparte evidence. In order to substantiate his case, the petitioner himself deposed as PW1.
7. PW1 (petitioner) deposed on the same lines as averred in E111/2013 Page 5/11 the petition. He has proved site plan, Ex. PW1/1; demand legal notice dated 16.02.2012, Ex. PW1/2; original postal receipts of registered posts, Ex. PW1/3 & Ex. PW1/4 and original postal receipts of the speed posts, Ex. PW1/5 & Ex. PW1/6. The demand legal notice dated 16.02.2012 was sent to the respondent at the address Block:
I139, Ashok Vihar, PhaseI, New Delhi110052 through registered post as well as speed post and it was served upon the respondent. The A.D. Cards of acknowledgment were received back, which are Ex. PW1/7 & Ex. PW1/8. The demand legal notice dated 16.02.2012 was also sent to the respondent at the address of the tenanted shop through registered post as well as speed post which were returned back. The original registered A.D. envelope with A.D. Card is Ex. PW1/9 and speed post envelope with A.D. Card is Ex. PW1/10.
8. The certified copy of order dated 16.10.2012 vide which the DR Petition bearing no. 135/2012 titled as Smt. Indu Jain Vs. Sh. Vijay Kumar U/s 27 of the Delhi Rent Control Act, filed by the respondent against the petitioner was disposed of by the court of Sh. Sanjay Bansal, Ld. RCcum SCJ (North), Delhi is Ex. PW1/11. The certified copy of that DR Petition dated 24.05.2012 is Ex. PW1/12. E111/2013 Page 6/11 The certified copy of objections dated 02.07.2012 filed in the aforementioned DR Petition is Ex. PW1/13. The tenanted shop is situated in Slum Area and the certified copy of the permission of the Competent Authority under Slum Area (I & C) Act for filing the eviction petition obtained on 08.12.2011 by the petitioner is Ex. PW1/14. The certified copies of judgment and decree passed by the court of Sh. Pranjal Aneja, Ld. Civil Judge (North), Tis Hazari Courts, Delhi, in suit bearing no. 32/12 titled as Sh. Vijay Kumar Vs. Smt. Indu Jain filed by the petitioner against the respondent for permanent injunction restraining the respondent and her agents, assignees, successors, family members, etc., from subletting or assigning or parting with the possession and from handing over the possession of the whole or part of the tenanted shop to any other person, are Ex. PW1/15 & Ex. PW1/16, respectively and the certified copy of the site plan filed in the aforementioned suit showing the tenanted shop, is Ex. PW1/17.
9. The court has heard the submissions of Ld. Counsel for petitioner and perused the evidence on record.
E111/2013 Page 7/11
10. In order to establish his case under Section 14 (1) (a) of D.R.C. Act, the petitioner is required to prove the following ingredients :
(i) That there is relationship of landlord and tenant between the parties;
(ii) That there are arrears of legally recoverable rent;
(iii) That a valid legal demand notice was duly served upon the respondent; and
(iv) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
11. PW1/petitioner, Sh. Vijay Kumar has proved the certified copy of DR Petition dated 24.05.2012, Ex. PW1/12 bearing no. 135/2012 titled as Smt. Indu Jain Vs. Sh. Vijay Kumar U/s 27 of the Delhi Rent Control Act, filed by the respondent against the petitioner before the court of Sh. Sanjay Bansal, Ld. RCcum SCJ (North), Delhi, Ex. PW1/11 prima facie establishes admission on the part of the respondent herein, Smt. Indu Jain that there is relationship of landlord and tenant between the parties. He has also deposed that predecessor E111/2013 Page 8/11 ininterest of the respondent was already the tenant in tenanted shop at the time it was purchased by his father in the year 1967 and as such by operation of law, the said predecessorininterest of the respondent became tenant under the father of petitioner at a monthly rent of Rs. 550/ excluding electricity and water charges. The respondent failed to pay the arrears of rent, qua the tenanted shop, w.e.f. 01.04.2011 onwards to the petitioner. The petitioner has proved demand legal notice dated 16.02.2012, Ex. PW1/2 alongwith original postal receipts of registered post, Ex. PW1/3 & Ex. PW1/4 and original postal receipts of the speed post, Ex. PW1/5 & Ex. PW1/6. Postal envelops whereby the said legal notice was returned from the address Block:
I139, Ashok Vihar, PhaseI, New Delhi110052 are Ex. PW1/7 & Ex. PW1/8. Postal envelops whereby the legal notice was returned from address of the tenanted shop are Ex. PW1/9 and Ex. PW1/10. The site plan of the shop in question is Ex. PW1/1. The testimony of PW1 has remained unrebutted and uncontroverted.
12. It has been held by the Hon'ble High Court of Delhi in cases of Prof. Ram Prakash Vs. D.N. Shrivastava, 126 (2006) DLT 6 and Raghbir Singh Vs. Sheela Wanti & Anr., 170 (2010) DLT 7 that E111/2013 Page 9/11 interest on arrears is part of rent and the same is required to be deposited by the tenant. The interest accrued on late payment U/s 26 of the Act becomes arrear of rent legally recoverable and if it is not paid within two months of receipt of demand legal notice, the tenant will become liable to be evicted U/s 14 (1) (a) of the Act. In the present case, the respondent had only deposited arrears of rent at the rate of Rs. 550/ per month in petition U/s 27 of the DRC Act. The petitioner had categorically raised objections averring that if does not constitute valid tender of rent without it being accompanied with interest at the rate of 15% per annum, but the respondent herein did not tender or deposit the interest component of arrears of rent.
13. As regards the tenanted shop having become unsafe or unfit for human habitation, PW1/petitioner, Sh. Vijay Kumar has deposed that the plaster of walls inside the shop has got deteriorated and it requires to be scrapped. Replastering of the internal walls is required to be conducted. The floor is in bad condition and reflooring is required to be conducted. The repairs required to be carried out, are extensive in nature and therefore, the shop is required to be vacated by the respondent. He is having necessary funds for carrying out repairs E111/2013 Page 10/11 in the tenanted shop.
14. The court is satisfied that PW1 has satisfied all the ingredients of Section 14 (1) (a) of D.R.C. Act. Thus, it is held that the petitioner has successfully established his case under Section 14 (1) (a) of the D.R.C. Act against the respondent in respect of one shop bearing no. 230231, situated on the ground floor in the property bearing no. 229 to 232 & 234 to 237, situated in Ward No. XII, Main Bazar, Sabzi Mandi, Delhi110007, as shown in red colour in the site plan, Ex. PW1/1 attached with the petition. However, the court is of the considered opinion that the petitioner himself has deposed that the tenanted shop is lying locked for more than three years prior to filing of the petition. No details as to when he had last visited inside the shop have been given either in the petition, or in his testimony. Only vague averments to the effect that the demised shop has become unsafe or unfit for human habitation have been made in the petition. It is inconceivable as to how the petitioner came to the conclusion that the tenanted shop has become unsafe or unfit for human habitation without even visiting it from inside. Moreover, deterioration of plaster of internal walls and bad condition of floor is a routine and common E111/2013 Page 11/11 phenomenon, which may not necessarily require vacation of the tenanted shop by the respondent for enabling the petitioner to carry out the said repairs. The petitioner is not a technical expert/Civil Engineer who can come to the conclusion that the tenanted shop has become unsafe or unfit for human habitation merely on account of deterioration of plaster of internal walls and bad condition of floor. Therefore, the court holds that the petitioner has failed to substantiate that the tenanted shop has become unsafe or unfit for human habitation and it is required bonafidely by the petitioner for carrying out repairs which cannot be carried out without the premises being vacated.
15. A perusal of record shows that order under Section 15 (1) of D.R.C. Act has not been passed till date. Therefore, the respondent is directed to pay or deposit the arrears of rent i.e. interest component of arrears of rent for the period 01.04.2011 to 01.04.2012 and further arrears of rent @ Rs. 550/per month excluding electricity and water charges alongwith interest @ 15% per annum w.e.f. 01.05.2012 till date within one month from the date of service of this order and continue to pay or deposit the future rent at the same rate by 15th of each succeeding month. Nazir is directed to maintain a separate file to E111/2013 Page 12/11 consider the entitlement of the respondent for the benefit under Section 14 (2) of the D.R.C. Act.
16. Issue notice to the respondent afresh alongwith copy of this order on filing of PF. Report of Nazir be called for 24.07.2014.
Announced in the open court (SANDEEP GARG)
on 07.06.2014 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi
E111/2013 Page 13/11
E111/2013
07.06.2014
Present : Sh. Chander Mal, Ld. Counsel for petitioner.
Clarifications on the aspect of tenanted shop having become unsafe or unfit for human habitation and default of the respondent in payment of rent obtained. Vide separate judgment announced in the open court today, it is held that the petitioner successfully established his case under Section 14 (1) (a) of the D.R.C. Act against the respondent in respect of one shop bearing no. 230231, situated on the ground floor in the property bearing no. 229 to 232 & 234 to 237, situated in Ward No. XII, Main Bazar, Sabzi Mandi, Delhi110007, as shown in red colour in the site plan, Ex. PW1/1 attached with the petition. Further, it is held that the petitioner has failed to substantiate that the tenanted shop has become unsafe or unfit for human habitation and it is required bonafidely by him for carrying out repairs which cannot be carried out without the premises being vacated. A perusal of record shows that order under Section 15 (1) of D.R.C. Act has not been passed till date. Therefore, the respondent is directed to pay or deposit the arrears of rent i.e. interest component of arrears of rent for the period 01.04.2011 to 01.04.2012 and further arrears of rent @ Rs. 550/per month excluding electricity and water E111/2013 Page 14/11 charges alongwith interest @ 15% per annum w.e.f. 01.05.2012 till date within one month from the date of service of this order and continue to pay or deposit the future rent at the same rate by 15th of each succeeding month. Nazir is directed to maintain a separate file to consider the entitlement of the respondent for the benefit under Section 14 (2) of the D.R.C. Act.
Issue notice to the respondent afresh alongwith copy of this order on filing of PF. Report of Nazir be called for 24.07.2014.
(Sandeep Garg) ACJcumARC (Central)/ Delhi/07.06.2014 E111/2013 Page 15/11