Delhi District Court
Shri Amar Singh S/O Shri Ram Jiwan vs M/S. Gupta Traders on 3 June, 2010
-: 1 :-
IN THE COURT OF MS. PREETI AGRAWAL
GUPTA: RENT CONTROLLER: ROHINI DELHI
E09/08/07/97.
Unique case I.D. No. 02404C0010962008.
In the matter of:
Shri Amar Singh S/O Shri Ram Jiwan
R/O 4344, Lawrence Road, Ram Pura,
New Delhi (through legal heir),
Smt. Om Wati W/O Shri Amar Singh
R/O 4344, Lawrence Road, Ram Pura,
New Delhi. ........Petitioner
Versus
M/s. Gupta Traders,
Shop No.4, ground floor,
R/O 4344, Lawrence Road,
Ram Pura, New Delhi. .........Respondent
Date of Institution: 19.03.1997
Date of reservation: 28.05.2010
Date of Judgment : 03.06.2010
E09/08/07/97.
Amar Singh Vs.
Gupta Traders
-: 2 :-
JUDGMENT:
1. By way of this judgment, court shall adjudicate and dispose of Eviction Petition filed by the petitioner in respect of suit premises comprising of a shop bearing shop No.4 at 43 and 44, Lawrence Road, Ram Pura, Delhi110035. The petitioner/ landlord Sh. Amar Singh expired soon after expiry of this Eviction Petition and was survived by two LRs including his wife Smt. Om Wati and his son Sh. Jai Prakash. The son /LR namely Jai Prakash also expired in the year 2000 and at present, vide orders allowed by the court, dated 28.03.2001, Smt. Om Wati widow of Sh. Amar Singh is the sole surviving legal representative upon whom the right to continue the Eviction Petition survives. The suit premises have been admittedly let out for nonresidential purposes and the respondent has been using the same for commercial purposes. In the petition, the petitioner has averred that the rate of rent of the suit premises is Rs. 297/ per month excluding electricity E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 3 :- charges and this Eviction Petition has been filed U/S 14(1)(a) of Delhi Rent Control Act.
2. It is the case of the petitioner that the respondent is in arrears of rent w.e.f. 01.11.1991 till 31.05.95 at the rate of Rs. 270/ per month excluding electricity and water charges and at the rate of Rs. 297/ w.e.f. 01.06.1995 till date of filing the petition after excluding the electricity and water charges. It is averred that the rent of suit premises was increased from 270/ per month to 297/ per month @ 10% as per permitted U/S 6A of the Delhi Rent Control Act vide notice dated 24.04.1995 sent by registered post and UPC. It is the case of the petitioner that despite notice, respondent has neither paid nor tendered the arrears of rent w.e.f. 01.11.1991 till date and has further claimed the interest thereupon the arrears of rent. It is averred that respondent failed to pay the arrears of rent despite legal demand notice dated 24.04.1996 served upon the respondent claiming that the respondent is liable to make the payment of E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 4 :- arrears of rent w.e.f. 01.11.91 till the date of filing the petition with interest with a prayer that an eviction order be passed in respect of the tenanted premises in favour of the petitioner and against the respondent Under Section 14 (1) (a) of DRC Act as the respondent has failed to make any payment of rent despite notice dt. 24.04.95 duly served upon the respondent vide registered post/UPC . It is averred that the notice was received back with refusal remarks and the postal receipt also being relied upon.
3. A detailed written statement has been filed on behalf of the defendant with the preliminary objections that the suit property falls in the Slum Area and that the present petition has been filed without the permission from the Competent Authority. It has been further averred in the written statement of the respondent that the eviction petition has been filed by Sh. Amar Singh through attorney Smt. Om Wati Saini without filing the power of attorney executed in her favour and E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 5 :- that the eviction petition has been filed by an incompetent and unauthorised person person. The respondent has further denied the service of any notice U/s 14 (1) (a) of DRC Act prior to the filing of eviction petition praying for outright dismissal of the eviction petition. It is further the case of the respondent that there are no dues of rent from the respondent at the time of filing the petition with the averments that rent upto February, 1997 has been paid by Sh. Amar Singh who has issued the rent receipt. It is denied that any cause of action arose in favour of the petitioner and against the respondents. On merits, the respondent has denied that the rate of rent is Rs.297/ per month excluding rate of electricity charges. It is the case of the respondent that the rent @ Rs. 270/ per month upto Feb. 1997 has been paid to Sh. Amar Singh in respect of the suit property but Sh. Amar Singh did not issue any rent receipt . It is averred that from March 1997, Amar Singh stopped accepting the rent showing his helplessness E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 6 :- before his wife who wanted to file the eviction petition without the authority and willingness of the landlord Amar Singh. It is further the case of the respondent that on 12.06.86. Amr Singh took Rs. 9900/ from the respondent and gave the undertaking that "the amount was being taken as a loan with interest, if not returned within three years by Amar Singh, the then M/s Gupta Traders will become the owner of the shop." The respondent has averred that he reserved his right to sue the L Rs of the petitioner for proper remedy in respect of the aforesaid undertaking. The respondent has specifically denied the service of notice dt. 24.04.95 either through UPC or registered post or by any other mode. It is prayed that there was no ground of eviction petition praying for dismissal of the petition.
4. The present eviction petition has been filed in the year 1997 and thereafter, there have been disposal of number of miscellaneous applications during the pendency. Orders E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 7 :- U/s 15 (1) of DR Act have been passed by Ld. ARC vide orders dt. 12.12.01 directing the respondent to deposit the rent at the admitted rate of Rs. 270/ per month w.e.f. 20.04.94 which is the legally recoverable period for arrears of rent within limitation with directions that the respondent was liable to deposit the rent forthwith by 15th of each succeeding month. In respect of this order, an appeal was filed and disposed of by Ld. ARCT Delhi vide orders dt. 17.01.03. Ld. Appellate court did not find sufficient ground for any interference in the order of Ld. ARC, Delhi with the observation that equity demands that the tenant could continue to pay rent for the premises let out to him thereby issuing directions that whether the petition U/s 14 (1) (a) of DRC Act was maintainable or not, the respondent/ tenant was liable to pay the rent to uphold equity. The Ld. ARCT , Delhi observed that as there existed a dispute regarding the payment of rent for the period from Feb. 1994 to Feb. 1997, E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 8 :- the same should remain deposited with the directions that if this court was of the view that the appellant/respondent had already paid the rent as claimed in this petition , then the deposited rent would be returned to the respondent. In this regard, an application U/s 151 CPC dt. 20.08.08, filed on behalf of the respondent is pending on record and has been directed to be adjudicated at this final stage of the order itself and hence under consideration herein. By way of the application U/s 151 CPC , the respondent/applicant has prayed for directions from the court to the petitioner to deposit back the withdrawn rent for the period 20.04.94 to 19.03.97 to the tune of Rs. 10,530/ and further directions from the court that this amount be returned to the respondent.
5. It shall also pertinent and not irrelevant to observe that during the pendency of the petition, the prayer was made U/s 15 (7) of DRC Act for striking of the defence of the respondent. Same has been disallowed by the E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 9 :- predecessor of this court and was reaffirmed in Appeal vide orders of ld. ARCT , Delhi. Court observed that the deposit of advance rent could not be done for any intention to defy the orders of the court and, therefore, there was no case was made out for striking off the defence of the respondent.
6. The court shall now examine the evidence that has been led on record. The L Rs and widow of Sh. Amar Singh has examined herself as sole petitioner witness and has tendered her evidence of affidavit with the deposition in conformity with the contents of the petition. PW1 has tendered the death certificate of late Sh. Amar Singh as Ex. P 1 and that of Sh. Jai Parkash , her deceased son who subsequently died after being impleaded as LR in the suit, as Ex. P2. PW1 has deposed that the General Power of Attorney dt. 18.02.95 was executed by late Sh. Amar Singh during his life time in favour of the deponent and certified copy of the same is tendered as Ex. P3. It is deposed that the respondent E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 10 :- is an old tenant in respect of the suit shop and that the respondent is in arrears of rent at the rate of Rs. 270/ per month w.e.f. 01.11.91 which has been unpaid despite legal notice dt. 24.04.95 issued through counsel late Sh. Amar Singh to the respondent. It is also deposed that vide this demand notice, the rate of rent was also increased by 10% as per section 6 (a) of DRC Act with the deposition that the respondent was required to pay the increased rent at the rate of Rs. 297/ per month w.e.f. 01.06.1995 excluding electricity and water charges. Copy of the same is Ex. P5. PW1 has further tendered the notice vide registered post as Ex. P6 and UPC Ex. P7 with copy of refused envelop and AD Card as Ex. P8 & P9. It is necessary herein to mention the orders of the court dt. 18.11.02 on an application filed on behalf of the petitioner for leading secondary evidence. The court passed a detailed orders with the observation that these documents pertaining to the notice on demand, postal receipt, E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 11 :- UPC receipt, refused /returned registered envelop etc. were not filed on the court record, though, allowing the petitioner to lead secondary evidence to facilitate proper adjudication in the matter. Vide these orders of the court, the petitioner was allowed to lead secondary evidence to prove these documents. Hence, by way of evidence of affidavit, the documents which are legal demand notice , postal receipt and refused/returned envelop has been exhibited hereinabove in copies and not original. The court has examined the relevance and admissibility of the documents if the petitioner has been able to prove these documents by way of secondary evidence in accordance with law or not ( herein after in this judgment).
7. The witness PW1 has been crossexamined regarding the issuance of notice of demand in the year 1995. PW1 has deposed that the notice of demand was issued in 1995 by her husband through the Advocate, when the husband of the deposing witness was alive. PW1 denied the suggestions E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 12 :- that the respondent was never served with the notice sent on behalf of the Advocate of the witness. It has been denied that there was no notice issued to the respondent. PW1 has deposed that notice was sent through registered AD in 1995 and that her advocate may been having original receipt of the notice sent on her behalf. The witness has been further cross examined regarding the general power of attorney stated to have been executed in favour by her husband. The witness has been confronted with the copy of General Power of Attorney to which the witness has replied that the original power of attorney was with her advocate. It is deposed that the same was prepared by her counsel. It has been further admitted that in Ex. P3 as general power of attorney reflected the name of father of Amar Singh Saini as Sh. Ram Jeevan Saini. The witness identified the signatures of her husband on Ex. P3. The witness has been examined if there were two demand notice in 1995 & 1996. The witness has replied that there was E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 13 :- only one demand notice in 1995. The witness has admitted that she has put her thumb impression on the eviction petition explaining that the same was filed by her husband . She had not accompanied the postman but the postman informed that the respondent has refused to accept the demand notice. On further crossexamination, PW1 has deposed that she signs in Hindi and that she never puts her thumb impression. PW1 has deposed that her husband issued rent receipt but the rent was received by her. It is further deposed that the rate of rent was Rs. 270/ per month. PW1 denied that her husband ever took any rent from the respondent. PW1 was crossexamined further and deposed that she went alongwith her husband for getting the notice issued denying that she was deposing falsely. No other witness has been examined on behalf of the petitioner.
8. The respondent has examined himself as proprietor of M/s Gupta Traders and his affidavit of E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 14 :- evidence is tendered as Ex. R1. RW1 has deposed that the entire rent in respect of the tenanted premises at the rate of Rs. 270/ per month was duly paid upto February 1997 to late Sh. Amar Singh who did not issue any rent receipt for last many years. RW1 has further deposed that from March 1997, Amar Singh stopped accepting rent showing his helplessness as his wife wanted to file the eviction petition. RW1 has further deposed that Sh. Amar Singh took loan of Rs. 9900/ from the respondent with the undertaking which has been tendered as Ex. RW1/1. This document has been deexhibited later as Mark C1 as the original of the same has not been produced despite opportunity. RW1 has further deposed that no notice U/s 14 (1) (a) of DRC Act was served or tendered before filing the eviction petition and that notice dt. 24.04.95 was never served upon him. It has been further deposed that no rent was due from the respondent at the time of filing the petition. The witness has been crossexamination E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 15 :- whereby RW1 has denied the suggestion that Smt. Om Wati used to collect the rent during life time of Amar Singh. It is also denied that he never paid the rent without rent receipt. The witness admitted that the shop in question has been correctly identified in the site plan Ex. P4 and the rate of rent at the rate of Rs. 270/ per month. It has been denied that he is in arrears of rent on 01.11.91 or that due notice dt. 24.04.95 Ex. P5 was ever served upon him. RW1 has been further crossexamined if he refused to accept the registered cover. It is denied that he received the notice by registered cover and UPC or refused to receive the same. It has been further denied that Amar Singh never took away money on 12.06.86 from the deposing witness. The witness has denied that there was name of Om Wati in the rent receipt issued to him . Ex. P10 is the copy of rent receipt confronted to the witness whereby, RW1 has denied his signatures. It is denied that rent receipt was issued in the name of Amar Singh and Om Wati. It is denied E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 16 :- that till March 1997, RW1 has not paid any rent to Amar Singh or that he did not pay any arrears of rent within two months of service of notice. Service of notice is denied.
9. The court has thereafter, heard at length the arguments addressed by respective counsels and has examined the law and the authority relied upon. During the pendency of the case, ld. counsel for respondent has expired and the associate counsel has address her arguments. The court has also appreciated the written arguments filed on record on behalf of counsel for respondent. The present eviction petition filed by the petitioner in respect of Shop No. 4, Ground Floor, 4344 , Lawrence Road, Ram Pura, New Delhi as shown in the site plan Ex. P4. The site plan Ex. P4 is admitted by the respondent and therefore, the extent of the suit premises and the relationship of landlord and tenant between the petitioner/LR of the petitioner and the respondent is not the subject matter of dispute. The present eviction petition U/s 14 E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 17 :- (1) (a) of DRC Act is filed on the ground that the respondent has failed to pay the arrears of rent w.e.f. 01.11.91 till the date of filing the petition i.e. 19.03.1997, despite due service of legal notice dt. 24.04.95.
Clause (a) of the proviso to subsection(1) of Section 14 reads as under:
"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 any court or 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 the 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 of the arrears of the rent legally recoverable from him within two E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 18 :- months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Sec. 106 of Transfer of Property Act, 1882 (4 of 1882)."
A perusal of the above provision reveals that for obtaining an order for recovery of possession under clause (a) the landlord must prove (1) that there existed a relationship of landlord and tenant between the parties; (2) that the tenant was in arrear of rent legally recoverable on the date of notice of demand; (3) that a notice for demand for arrears of rent had been served on the tenant in the manner provided in Section 106 of Transfer of Property Act; and (4) that the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable within two months of the service of notice of demand.
10 In the present case, the court has already observed that there is no further requirement to examine the first E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 19 :- ingredient to prove the relationship of landlord and tenant between the parties as the same is admitted facts between the parties in respect of the suit premises which is a shop let out by the petitioner/ husband of the petitioner for nonresidential purposes. In the present eviction petition, technical objections in filing the petition through Omwati as attorney of Amar Singh has also been raised. The court has carefully examined the material on record . PW1 has been crossexamined but there has been no material breach that creates any doubt on the authority of Omwati to file or proceed with this petition. The certified copy of GPA has been duly filed on record. There is no relevance of the signatures of PW1 on the GPA as she is not the executant thereof. During the pendency of petition, Omwati however, has been impleaded as legal representative (LR) of late Sh. Amar Singh and, therefore, at the time of disposal of this petition, the status of Omwati stands merged with that of the petitioner. E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 20 :-
11. The court shall now examined if the petitioner has been able to prove that the tenant was in arrears rent legally recoverable on the date of notice of demand as dt. 24.04.95. The present eviction petition has been filed on behalf of the petitioner with the averments that the respondent has failed to pay the rent w.e.f. 01.11.91 till the filing of the petition despite the notice dt. 24.04.95 . It is the case of the petitioner that the respondent was liable to pay the arrears at the rate of Rs. 270/ per month w.e.f. 01./11.91 till 21.05.95 and thereafter, rate of Rs. 297/ after enhancement of rent by 10% as permitted under the law after the notice of demand dt. 24.04.95 was served upon the respondent. The respondent in his written statement has categorically denied that he was in arrears of any rent with the averments that the rent has been regularly paid at the rate of Rs. 270/ per month to Sh. Amar Singh, deceased petitioner uptil the date of filing of the petition i.e.19.03.97. The respondent has tried to introduce his own E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 21 :- case by stating that a sum of Rs. 9900/ was taken by Sh. Amar Singh on 12.06.96 after giving an undertaking in writing that the same shall be repaid failing which the petitioner would go into the ownership of the respondent within three years. The respondent has specifically denied any enhancement in rate of rent of Rs. 297/ per month as he has denied the receipt of notice of enhancement of rent dt. 24.04.95 upon him. In this regard, the respondent , as RW1 also sought to tender the copy of ledger as Ex. RW1/1 in absence of producing the original despite repeated opportunities, same was deexhibited as Mark C1. In any case, it is not the case of the respondent that the rent in respect of the suit premises was liable to be adjusted against the alleged friendly loan. Therefore, the court need not examine the claim and testimony of the respondent in respect of the alleged friendly loan, same being irrelevant for the purpose of present petition E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 22 :-
12. PW1 is the sole petitioner witness and she has deposed that she was in receipt of the rent of the suit property even during the life time of Sh. Amar Singh. Copies of rent receipts have been tendered as Ex.P10 to P14 which have been produced in the court as copies of rent receipts issued with the name of Amar Singh and Om Wati . Ex. P10 to Ex.P14 have been confronted to RW1 in cross examination. RW1 has specifically denied his signatures on the documents Ex.P10 alleged to have been issued by Amar Singh and Om Wati. RW1 in his crossexamination has denied the suggestion that the rent receipts were issued in the name of Amar Singh and Om Wati. It is also denied that he has not paid any rent to Sh. Amar Singh in March 1997. RW has reiterated the averments in the written statement as upto date rent Rs. 270/ per month has been paid by him upto Feb. 1997.
13. The onus to prove that the respondent was in arrears of rent which are legally recoverable on the date of E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 23 :- notice of demand lies entirely upon the petitioner. Vide orders of the court dt. 12.12.01, this court has already directed to deposit of rent at the rate of 270/ per month for the period only for three years prior to the filing of the petition which means w.e.f. 20.04.95 uptil the orders dt. 12.12.01 with directions to deposit the entire arrears of rent within one month which is only recoverable period for which arrears of rent can be claimed by the petitioner. The eviction petition has been filed on the basis of notice of demand dt. 24.04.95 and further directions to deposit the rent by 15th day of each succeeding month. The court also observed that the dispute regarding rate of rent and service of notice of demand etc. would be determined after the parties have adduced their respective evidence.
14. The court has carefully examined the entire evidence on record. The onus to prove that the respondent/tenant was in arrears of rent is entirely upon the E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 24 :- petitioner. Whereas, it is the case of the petitioner that the respondent is in arrears of rent w.e.f. 01.11.91 , this fact has been categorically denied by the respondent right from the stage of filing the reply to the petition. The respondent has averred all through the trial that upto date rent at the rate of Rs. 270/ per month has been paid by the respondent to Amar Singh, husband of Om Wati, upto Feb. 1997 . It is the case of the respondent that owing to intention of Omwati to create false grounds of eviction, the rent tendered by the respondent was refused w.e.f. 1997 by late Sh. Amar Singh. As such, service of notice of demand dt. 24.04.95 has also been denied by the respondent thereby denying that there was any increase in the rent to the tune of 10% in respect of the suit premises. Keeping in view of the dispute regarding the rate of rent and the period of arrears of rent, the Ld. ARCT, Delhi modified the orders of Ld. ARC Delhi Under section 15 of DRC Act, to the extent that the rent deposited for the period E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 25 :- from 1994 to 1997 was directed to remain deposited with liberty granted to the court to direct the same to be returned in case, the petitioner failed to prove that the respondent was in arrears of rent for this period. The admitted period of payable rent w.e.f. March 1997 was allowed to be withdrawn by the petitioner during the pendency of the case.
15. The petitioner has tendered on record rent receipt Ex. P10 to Ex.P14. The copies that have been filed on record have been categorically denied by the respondent despite specific crossexamination on this aspect. The respondent in his crossexamination as RW1 has categorically denied that any rent receipt with the name of Amar Singh and Omwati was ever issued to him. The respondent has denied that he ever signed on the receipt Ex. P10 which was confronted to him only in copy. In these facts and circumstances, the court is to examine the evidentiary value of Ex.P10, P11 to P14. Vide orders of the court dt. 18.11.02, leave has been granted E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 26 :- to the petitioner by the court for leading secondary evidence in respect of notice of demand, post receipt, UPC receipt, refusal/ returned registered envelop. There has been no leave sought specifically in respect of the rent receipts for leading secondary evidence. Even otherwise, if it is to be presumed that blanket leave has been sought from the court to lead secondary evidence, the court has to examine if the petitioner has been able to prove the requisite documents pertaining to the receipts of rent, in accordance with law. There is not an iota of testimony of the petitioner as PW1 as to traceability of the original counter foils of the rent receipt allegedly issued in favour of the respondent. The copies when showed to the respondent in crossexamination, have been categorically denied. All through the trial, RW1 has denied that any rent receipt was ever issued by late Sh. Amar Singh for the rent paid by him and signatures on Ex. P10 confronted to the witness RW1 have been specifically denied. E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 27 :- RW1 has also denied that the rent receipts were issued in the name of Amar Singh & Om Wati . It is the law of evidence as per section 63 of India Evidence Act that "secondary evidence of a document can be allowed to be led only when original has proved to have existed but was lost or misplaced"; Filmistan P. Ltd. Vs. Bombay Muncipal Coporation , A1973 B 66. It has been further held in State of Karnataka Vs. M. Muniraju, AIR 2002, Kant 287 that the documents having not been produced and marked as required under the Evidence Act can not be relied upon by the Court. It has been further held that the party is at liberty to adduce any kind of secondary evidence that he may choose but the party offering such evidence has to prove that he has the possession of a counter part or copy or an abstract of the document which has been copied from the original documents ( Held in Brown Vs. Brown 8 E & B 876). The court has examined the illustrations appended to Section 63 of the Indian Evidence E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 28 :- Act. It is the law of the land that any such document shall be considered as secondary evidence of the original where it can be proved that the original has been lost or misplaced and further that the copy tendered in secondary evidence has been prepared from the original whether by way of a photograph or a photocopy or even a transcribed copy. Law specifically precludes oral account of any document and lays down that the same shall be treated as secondary evidence only if it can be shown that the document was in existence and that the documents sought to be proved was in existence and executed but can not be produced owing to loss, destruction or detention by the opponent .
16. In light of the aforesaid law, the court has carefully examined the testimonies and evidence in the present case. PW1 has failed to prove by preponderance of probabilities that the respondent was in arrears of rent w.e.f. 01.11.91. The rent receipts Ex. P10 to Ex. P14 have not been proved E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 29 :- by secondary evidence in accordance with law as they have been categorically denied by the respondent who has even denied that any rent receipt was ever issued in respect of rent paid against tenanted premises. There is no satisfactory proof brought before the court to show that the alleged rent receipt in original of Ex. P10 to P14 was ever in existence. Not even a single original counter foil has been produced. RW1 has specifically denied the existence of any such rent receipt in the name of Amar Singh & Om Wati. Applying the rules and laws of evidence, the petitioner has been unable to discharge the onus to prove, by preponderance of probabilities, that there were arrears of rent in respect of the suit premises w.e.f. 01.11.91 or thereafter, there, the petitioner has failed to satisfy the court regarding the existence of arrears of rent in respect of the suit premises which were legally recovered on the date of notice of demand on 24.04.95.
17. The court shall now examined in brief the E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 30 :- remaining ingredients, although, in absence of second ingredient having been proved by the petitioner, the present petition can not succeed. However, for the purpose of academic discussion and in order to bring the finality to adjudication of the case, the court shall examine if the notice for demand of arrears of rent has been served upon the tenant in the manner provided in Section 106 of Transfer of Properties Act. Whereas, it is the case of the petitioner that the notice of demand has been duly served upon the defendant placing reliance upon the legal notice Ex. P5 and postal receipt Ex. P6, P7 & P8. It is the case of the petitioner that the postal envelop was returned with the report of refusal and, therefore, was served in accordance with law upon the respondent. Leave to lead secondary evidence as discussed above was granted by the court without expression of opinion on the admissibility and proof of necessity of such secondary evidence by the petitioner. The respondent has E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 31 :- categorically denied the receipt of notice of demand. It is unnecessary for the court to examine the requirement U/s 106 of Transfer of Property Act in respect of contents of the notice of demand in question. It is the case of the petitioner that the notice of demand dt. 24.04.95 was comprising of contents as shown in Ex. P5. Perusal of the same reveals that the alleged notice of demand Ex. P5 is purported to have been in writing and in accordance with the requisites of Section 106 of Transfer of Property Act. The bone of contention in this case is not ingredients of notice but the fact of service of notice upon the respondent. The respondent has claimed that notice Ex. P5 was duly served at the correct address of the tenanted premises upon the respondent as he refused to accept the same. It is, no doubt the law of the land that the presumption of due service shall arise in case it can be proved that the notice was dispatched at the correct address of the respondent and was refused to have E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 32 :- been accepted. However, the documents which have been tendered on record are only the photocopies in this regard. PW1 has deposed that the original of the same may be with the counsel of petitioner. Despite opportunity, the original could not be produced by / on behalf of the petitioner. As law discussed above, the law lays down the onus upon the petitioner to prove the documents by secondary evidence. The petitioner has failed to discharge the onus and has failed to satisfy the requirement of law as to the admissibility of these documents. There is no reasonable explanation to the absence of original of purported document comprising of legal notice, postal receipt and returned envelop. The petitioner has not even made any attempt to examine any official from the postal department to prove the returned envelop. The petitioner has not even made any attempt to examine any official from the postal authority regarding the posting of the demand notice. In absence of any reliable evidence on record, E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 33 :- the petitioner has failed to satisfy the court about the service of demand notice dt. 24.04.95 upon the respondent. Hence, the enhancement of rent vide demand notice also does not stand proved.
18. The court shall now examine the fourth ingredient for proving the entitlement for eviction order U/s 14 (1) (a) of DRC Act. It is not the case either the petitioner or the respondent that any rent in whole or in part has been made on receipt of notice of demand. In light of the adjudication of the ingredients hereinabove , it is irrelevant to discuss this issue as the very question of payment of arrears of rent on receipt of notice of demand does not arise. The court has already observed that the petitioner has failed to prove that there is any arrears of rent payable as per the alleged demand notice dt. 24.04.95 by the respondent and has even failed to prove, by preponderance of probabilities that the notice of demand was served upon the respondent.
E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 34 :-
19. The court shall also examine the application U/s 151 CPC that has been kept deferred for the adjudication at the final stage. It has already discussed in this order / judgment that vide orders of Ld. ARCT dt. 17.01.03, the rent at the rate of Rs. 270/ per month deposited for the period from 1994 to 1997 was to remain deposited in the court and if the court is ultimately arrived at a finding that the rent was already paid by the respondent, then this court would be at liberty to direct for the return of the deposited rent for the aforesaid period to the respondent. This court has already arrived at a finding that the petitioner has failed to satisfy the necessary requirements of law to prove that the respondent was in arrears of rent w.e.f. 01.11.1991 or for any other period as per the alleged notice of demand dt. 24.04.95. Accordingly, the respondent herein would only liable to pay the rent at the admitted rate of Rs. 270/ per month for the admitted period w.e.f. March 1997. Therefore, the rent which has been paid during the pendency, is not liable to be returned by the petitioner. E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 35 :- The application is accordingly, disposed of with directions that the petitioner should deposit the rent for the period from 1994 to Feb. 1997, if already withdrawn by the petitioner. If the said amount is lying with the court then as per directions of Ld. ARCT, Delhi vide order dt. 17.01.03, the respondent herein shall be entitled to withdraw the rent for the period 1994 to Feb. 1997.
20. In light of the aforesaid facts and reasons, the present eviction petition fails to be proved in favour of the petitioner and against the respondent. The eviction petition is accordingly, dismissed as disallowed. No order as to costs. File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY i.e. 03.06.2010.
( PREETI AGRAWAL GUPTA ) Senior Civil JudgecumRent Controller (NorthWest), Rohini, Delhi.
E09/08/07/97.
Amar Singh Vs. Gupta Traders -: 36 :- E09/08/07/97.
03.06.2010:
Present: Counsel for parties.
Vide separate detailed and reasoned judgment dictated and announced in the open court, the eviction petition is hereby disallowed. Also, a detailed order has been passed on the application U/s 151 CPC dt. 28.03.08 filed by the respondent whereby the application is disposed as allowed in terms of the detailed orders in the judgment itself. No order as to costs. File be consigned to record room.
( Preeti Agrawal Gupta ) SCJcumRC(NW) ROHINI, DELHI.
03.06.2010.
E09/08/07/97.
Amar Singh Vs. Gupta Traders