Delhi District Court
Priya Bhushan Bharadwaj vs B.S(Dead) Through Lr'S 1993 (1) Rcj 547 on 30 January, 2015
IN THE COURT OF SH. PRASHANT SHARMA: LD. ACJ/ARC/CCJ :
PATIALA HOUSE COURTS: NEW DELHI
E. No. 11/11
UID No. 02403C0052862011
Priya Bhushan Bharadwaj,
Through his General Attorney
Mr. Khushwant Singh Rekhi
S/o. Major Inder Singh Rekhi
R/o. M51, Greater KailashI
New Delhi110048. ........... Petitioner
Verses....
M/s. B.R. Herman & Mohatta
K46, Connaught Place
New Delhi110001 ............ Respondent
PETITION UNDER SECTION 14(1) (d) DELHI RENT CONTROL ACT,
1958.
Date of Institution of the petition : 12.07.2011
Date on which Judgment was reserved : 22.01.2015
Date of Pronouncement of Judgment : 30.01.2015
Case referred:
1) Ranjeet Singh(dead) through LR's Vs. B.S(dead) through LR's 1993 (1) RCJ 547, Hon'ble
Delhi High Court
2) R.K. Bhatnagar Vs. Sushila Bhargava 1986 (2) RCR 212 Justice J.D. Jain
E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.1
JUDGMENT
1. Present Eviction petition, revolves around the question, as to whether tenant or any of his family member has been residing in the tenanted premises, for a period of six months, immediately before the date of filing of present eviction petition? In other words, it is for the tenant, to prove that the premises in question were not lying vacant, six months prior to filing of petition. 2 During course of trial, documents brought on record through evidence, are not disputed by the litigating parties and therefore are referred, in the manner they are marked, in my subsequent paragraph where in evidence of the case are mentioned in brief:
Petitioner is a non resident Indian and due to her preoccupation in her business, she has appointed PW1 Kushwant Singh Rekhi as her General Power of Attorney through GPA dated 25.07.2011 Ex.PW1/1. Present Eviction petition is filed by petitioner through her GPA. In the petition it is averred that petitioner alongwith his father Sh. Satyadev Bharadwaj and other family members purchased the property bearing no. K4, Connaught Place, New Delhi(hereinafter property in question) vide registered Sale Deed dated 23.02.1968 from M/s. Madan Mohan Lal Shri Ram Pvt. Ltd, E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.2 Ex. P1. That consequent to the said sale deed petitioner became coowner of aforementioned property. That at the time of purchase of the aforesaid property, respondent, namely M/s B. R. Herman & Mohatta, was occupying flat bearing no.
K46, Second Floor, Cannaught Place, New Delhi (hereinafter tenanted premises) in the aforementioned property, as a tenant at the monthly rent of Rs. 107.73/ only. That after purchase of the aforesaid property including the tenanted premises, petitioner alongwith other coowners stepped in to the shoes of previous owners/landlord and respondent also by paying rent in the name of father of petitioner and other coowner attorned in favour of petitioner and other coowners. That the tenanted premises is residential in nature and respondent was inducted as tenant as erstwhile owner vide agreement dated 01.01.1946, Ex. P2. That tenanted premises are lying vacant and were totally abundant for the last many years, as the basic necessary facilities such as electricity, water and telephone, have not been utilized by the respondent for last many years. In addition to that corporate aforesaid version of petitioner, envelope containing letter dated 12.10.2010 Ex. PW 1/3, which was sent to respondent by the petitioner was returned back for the reason that tenanted premises are locked. Thus case of the petitioner is that tenanted premises in E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.3 question are lying locked and not being used by the respondent for more than six months, immediately before the date of filing of present petition. Therefore, petitioner through her affidavit prayed that eviction order may be passed against the respondent on the said ground.
3. After filing of petition Summons were issued against the respondent and consequently respondent filed its written statement.
4. In its written statement, respondent challenged the case of petitioner on the ground viz. that contents of petition are false, respondent is regularly paying rent/electricity bills/water bills/house tax charges and telephone bills to the concerned authorities, that officials/employees of respondent were residing in the tenanted premises since 01.01.1946 and therefore petitioner has prima facie case in his favour. Apart from that respondent denied the version of tenanted premises being abandoned by the respondent and placed on record copies of electricity bills, Water bills, House Tax charges and telephone bills, with its written statement, to argue that the said property is not being abandoned by respondent rather was being continuously used by respondent's officials.
5. In response to the version of respondent petitioner filed his rejoinder in which allegations of the respondent with regard to usage of tenanted premises were disputed and contents of the petition were reiterated. E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.4
6. After completion of pleadings matter was fixed for plaintiff evidence.
7. Petitioner examined two witnesses, to prove his case.
8. PW1 Khushwant Singh Rekhi being General Power of Attorney of petitioner, reiterated the contents of the eviction petition already referred above and not repeated here for the sake of brevity. In addition to that documents referred above he also placed on record documents viz. Site Plan of tenanted premises Ex.PW1/2, Original photographs Ex.PW1/4 and Ex. PW1/5 and two newspapers dated 10.04.2011 and 10.05.2011 Ex.PW1/6, Ex.PW1/7 and report of Summons issued by this court which were not served on respondent as the tenanted premises were found locked Ex.PW1/8. This witness further deposed that water bills Ex.R1/A to R1/E, Electricity bills Ex.R2/A to Ex.R2/B and telephone bills Ex.R3/A to Ex.R3/L, relied by the respondent, are of no consequences as the said bills shows that there is no consumption of the said essential supplies in the tenanted premises which further proved that tenanted premises are abandoned by the respondent.
9. PW2 Vinod Kumar, Sub Inspector, Commercial Department NDMC in his testimony, deposed that no electricity connection has been fixed on the tenanted premises since 02.12.1996 till date. He relied upon photocopy of E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.5 reading book of the meter bearing K. No. 65341 PC Ex.PW2/A to depose the same. He also identified Bills Ex.R2/A to Ex.R2/D, being bills raised on flat no. 6K, Connaught Circus, New Delhi, being not related to the property in question. He deposed positively that electricity consumption was nil for the time period 06.08.2010 to 05.10.2010 and expression "CP" mentioned in the Bills Ex.R1/A to Ex.R1/E, which means charged provisionally, which in turn means that water meter is either locked or was buried, during the said period. He further placed on record photocopy of reading book of water bills Ex.PW2/B. Subsequently Plaintiff's evidence was closed.
10. Respondent did not led any evidence and therefore matter was fixed for judgment after final arguments were heard.
11. Before moving further, it is relevant to know the mandate of law, U/s. 14(1)(d) DRC Act.
12. Section 14(1)(d)DRC Act is attracted only if the premises were let out for residence and neither the tenant nor any member of his family have been residing therein for six month's immediately preceding the date of filing of eviction petition. The Clause applies to the premises let out for residence and not to the premises let out for the purpose other than the residence. The period of six months shall be continuous. If the tenant or any member of his family had resided in the premises during this six months period then the case is not covered under E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.6 this Clause. The six months period must complete before the filing of eviction petition. If even for a short period i.e. a day or two, tenant or any of his family members, occupy the premises then this clause is not attracted. The question of residence or non residence is not a question of presumption rather it is a question of fact. It is not a question of inference, but of positive proof. Said fact can be proved in many ways.
13. In Ranjeet Singh(dead) through LR's Vs. B.S(dead) through LR's 1993 (1) RCJ 547, Hon'ble Delhi High Court had held that electricity bills are the best evidence to show that the demised premises have been in occupation of the tenant during the relevant six months. In R.K. Bhatnagar Vs. Sushila Bhargava 1986 (2) RCR 212 Justice J.D. Jain was of the view that it is true that non consumption of electricity by a tenant over a long period may not in itself be sufficient to warrant an inference of non residence by the tenant, but it is certainly an important piece of evidence and it tilts the balance in favour of the landlord.
14. Therefore consumption of electricity in the demised premises, constitute an important aspect for appreciating whether tenant resided in demised premises, six months immediately prior to the filing of eviction petition.
15. Coming back to the facts of the present case petitioner has made very categorical deposition through its witness PW1, that property in question E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.7 was lying locked, six months, immediately prior to filing of present petition. As per record present petition was filed on 12.07.2011. Therefore as per petitioner, property in question was lying locked and abandoned, between 11.01.2011 to 12.07.2011. As per respondent, its officials/employees were regularly using the property in question, during the said period and said property was never abandoned by them. PW1, in order to substantiate claim of petitioner, referred to the water bills(Ex.R1/A to Ex.R1/E), electricity bills(Ex.R2/A to Ex.R2/D) and telephone bills (Ex.R3/A to Ex.R3/L), filed by the respondent. He deposed that the said bills did not reflect that any of the aforementioned services, were used by officials of respondent, during 11.01.2011 to 12.07.2011, as all the said bills including bills for the aforementioned period clearly show that no charges in response to consumption of services by the concerned agencies, were raised by the said agencies. In addition to that aforesaid bills were of no consequence as they pertain to premises, distinct from the premises in question. As per the testimony of PW2, Vinod Kumar, Superintendent, Commercial Department, NDMC, property K46, Connaught Circus, New Delhi mentioned in the aforesaid bills is distinct from the aforesaid property in question. After considering the aforesaid bills, I find that water bills Ex.R1/A and Ex.R1/B, are pertaining to the year 2010 and therefore are not relevant, for the reason that the said bills, do not pertain to the period of six months, immediately prior to filing of present petition, as mentioned above. Ex.R1/C and Ex.R1/D are water bills for the period March 2011 and May 2011 but they reflect that there was zero reading during said period in the premises in question. Ex.R1/E pertains to the period July 2011 E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.8 but is on no relevance as necessary charges, raised in the said bill are based on "CP" method which as per testimony of the concerned official of NDMC, viz. PW2 Vinod Kumar, means charge provisionally and is leveled where the property is either lying locked or where the meter is buried. Both the said possibilities indicate that the concerned property is not used by its occupant. Therefore respondent who has relied the aforesaid bill cannot take benefit of said bill as it was raised on "CP" method. Electricity bill Ex.R2/A and Ex.R2/B are not relevant as they are not related to the period immediately six months prior to filing of present petition, as mentioned above. Ex.R2/C and Ex.R2/D pertains to the period March 2011 but is of no relevance as it is raised on the flat no. 6KC, Circus, which is distinct from the property in question. Telephone Bills Ex.R3/A and Ex.R3/B are of no relevance as they are not pertaining to the period six months immediately prior to filing of present petition as mentioned above. Apart from that telephone bills Ex.R3/C to Ex.R3/F, though are pertaining to the period six months immediately prior to filing of present petition, but they are of no help to the version of respondent, for the reason that any of the said bills, zero call charges are mentioned, which means that during the said period, telephone, affixed on the premises in question was never used. Telephone Bills Ex.R3/G to Ex.R3/L, are of no relevance as they are not related to the period six months immediately prior to filing of present petition as mentioned above. The net result of aforesaid appreciation is that all the aforesaid bills did not help the version of respondent with respect to premises in question being used by respondent's officials, six months immediately prior to filing of present petition. E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.9
16. PW1 was briefly cross examined by the respondent. Precisely he was put aforesaid bills. I failed to understand as to why respondent filed the said bills which either are not related to the property in question or clearly show that respondent never utilized the services, be it water, electricity, or telephone. In fact PW1 categorically replied that electricity and water connection in the property in question had been disconnected since long period. There was no suggestion by the respondent, disputing the said fact. Even otherwise, though respondent has taken the stand that present petition was filed by the petitioner, with malafide intention but respondent did not give any reason behind the said version either in its written statement or through evidence. No suggestion with regard to petition being filed with ulterior motive was put to PW1. Therefore respondent tacitly admitted the bonafide of petitioner.
17. In support of his version regarding property in question being abandoned by the respondent, PW1 placed on record envelope dated 12.10.2010 along with report dated 13.10.2010 Ex.PW1/3 are showed that letter address to the respondent at the property in question was returned back with the report that it was locked. Respondent did not dispute the said reports and letter and therefore said piece of evidence also indicated that property in question was abandoned by the respondent, wayback in the year 2010.
18. PW1 placed on record photographs of the entrance door of property in question with newspaper dated 10.04.2011 and 10.05.2011 Ex.PW1/4 E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.10 and Ex.PW1/5 which indicated that on the said dates property in question was locked. Respondent did not disputed the said photographs and therefore admitted on the said dates, property in question was locked. Resolution did not explain as to why property was locked on the said dates and it also corroborated the version of petitioner regarding property being abandoned by respondent, for many years prior to filing of present petition.
19. PW1 also testified that his version also get support from the summons report Ex.PW1/8 received by this Court in which it was reported that respondent could not be served as premises were locked. Respondent did not dispute the said fact also and therefore it also proved the case of petitioner.
20. Apart from aforesaid aspects authority of PW1 to depose on behalf of petitioner vide GPA Ex.PW1/1 was not disputed by the respondent. Therefore there was no doubt that PW1 was the authorized person to depose on behalf of petitioner. PW1 did not succumb to the version of respondent with regard to false allegations and overall his testimony was trustworthy and reliable. I believed his testimony.
21. PW2 Vinod Kumar was an official from NDMC Department who clarify the air about bills raised on "CP" ground. His testimony was relevant with respect to various aspects viz. one, that electricity meter at property in question was disconnected since 02.12.1996 and therefore no electricity connection was E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.11 fixed since then. Next, he testified that Ex.R2/A to Ex.R2/D bills are not related to the property in question. He further testified that period prior to 11.07.2011, electricity consumption in the premises in question was nil which supported the version of petitioner that premises in question was never used by the respondent, for the last many year. This witness was never questioned by respondent that if bills are raised by NDMC on "CP" method, then it will amount to property being used by its occupant. Thus his testimony did not help the cause of respondent as he also corroborated the fact that premises in question was never used by the respondent, six months prior to the filing of present petition.
22. Petitioner therefore proved his case on the basis of reliable testimonies of his witnesses. Apart from that respondent itself placed on record bills which fortified the claim of petitioner that property in question was abandoned by respondent, six months prior to filing of present petition. Therefore petitioner's case was proved.
23. Per Contra respondent had categorically stated in its written statement that property in question was never abandoned by it and was rather used by its officials. Further it had claimed that present petition was malafidely filed by petitioner and should be dismissed. Respondent on one hand did not challenge the case of petitioner by putting suggestions based upon its own objections mentioned in the written statement and on other hand did not lead any evidence with regard to facts relating to malafide of petitioner and those relating E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.12 to non abandoning of the property in question, which were within the personal knowledge of respondent and as per section 106 of Indian Evidence Act, onus of proving the said facts rested on respondent. He failed to do so much to his own disadvantage.
24. As per section 57 of Indian Evidence Act, I am taking judicial notice of Local Commissioner's report which is on record dated 29.09.2014. As per record this court had appointed Local Commissioner on 27.09.2014 who visit the property in question, for taking photographs of the property, detailing out the exact status of property in question, report about activities if any going in the said property. Local Commissioner had reported vide her aforesaid report, mentioning the fact that when she visited the property in question she had found certain labours working there. She had noted down the said labours/workers. Photographs annexed with the said report clearly indicated that condition of property in question reflected that it was not used and was lying abandoned and was in dilapidated condition, for a long period. On the face of it I find that respondent tried to cover up its shortcomings of non utilization of property in question by repairing the property, as reflected by the photographs, wherein workers were doing repairing work in the property in question. Said covering act of respondent as reflected by the Local Commissioner report, also precisely indicated that the property in question was abandoned by the respondent for a long period. Respondent never disputed the contents of the said report and therefore it amounted to an admission with regard to veracity of the said report. E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.13 That is another chink in the version of respondent which did not help its own version.
25. This brings me to the written submissions, filed by respondent.
26. Respondent argued through its written submissions, that eviction petition of petitioner is not maintainable, as it was not filed by duly authorized person. Said argument was not tenable as respondent did not put any suggestion with regard to said argument to any of the petitioner's witnesses and did not challenge the GPA Ex.PW1/1, placed on record. His argument therefore is an afterthought, which is declined by me.
27. He further argued that petitioner filed present petition, on behalf of other co owners/landlords and in view of Judgement of Ujagar Singh Kakkar Vs. Chander Mohan & Ors. 1987 (12) DRJ 124, present petition must be dismissed as other co owners of property in question, were not joined as co petitioners by the petitioner. Said case law is of no relevance, in the given facts of present case, as in the said case law Hon'ble Delhi High Court had observed that since there was no evidence of landlord being authorized to file petition by other LR's and non attornment of landlord by the tenant, so petition was dismissed for non joinder of necessary parties. In the given case at the very outset I find that respondent did not cross examine the petitioner witnesses on the said aspect. No suggestion was put to petitioner witnesses pertaining to said argument. It is an afterthought E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.14 argument and is declined. Even otherwise in the present case, PW1, categorically stated in his affidavit Ex.PW1 that all the co owners had no objection with regard to filing of present petition, which was never disputed by the respondent in evidence. Therefore version of petitioner, remained unrebutted through out trial and cannot help the cause of respondent at this stage.
28. Apart from that respondent argued that due to typographical error on the part of NDMC, Bills were issued by NDMC against respondent on wrong address though said bills pertain to property in question. Therefore said reasoning must be appreciated with regard to wrong mentioning of address of property in question in the bills, placed on record. Again, aforesaid argument was baseless as there was no evidence in support thereof, led by the respondent, on record.
29. Respondent further raised the issue that in case property in question was locked since 1996, then how come concerned department of NDMC is raising regular bills on the said premises, till date. In the light of said possibility, respondent challenged the testimonies of PW1 and PW2 as untruthful. I did not find the said argument tenable, for the reason that respondent never raised the said issue during trial and in its pleadings. Even otherwise aforesaid argument did not clarify as to whether property in question was used by the respondent. It was a vague argument and therefore discarded by me.
E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.15
30. keeping in mind the aforesaid appreciation of pleadings, evidence and record placed before me, I find that petitioner was able to prove its case U/s. 14(1)(d) DRC Act. Present petition stands allowed. Respondent is given one month time to vacate the property in question viz. K46, Connaught Circus, New Delhi, measuring about 2707 sq. ft., part of property no. K4, Connaught Circus, New Delhi, as shown in red colour in site plan in Ex.PW1/2.
31. File be consigned to record room after necessary compliance. Announced in the open court on 30.01.2015. (Prashant Sharma) ARC/ACJ/CCJ: Patiala House Courts New Delhi : 30.01.2015 E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.16 E. No. 11/11 30.01.2015 Present : Ms. Manpreet Kaur proxy counsel for petitioner.
Proxy counsel for respondent.
Vide my judgement of even date, Present petition stands allowed. Respondent is given one month time to vacate the property in question viz. K46, Connaught Circus, New Delhi, measuring about 2707 sq. ft., part of property no. K4, Connaught Circus, New Delhi, as shown in red colour in site plan in Ex.PW1/2.
File be consigned to record room after necessary compliance.
(PRASHANT SHARMA) ARC/ACJ/CCJ: New Delhi Patiala House Courts/30.01.2015 E No. 11/11 Priya Bhushan Bharadwaj VS. M/s. B.R. Herman & Mohatta Pvt. Ltd. Page No.17