Delhi District Court
Shri Virender Kumar Jain vs Sh. Dinesh on 22 December, 2016
IN THE COURT OF MS. SHUCHI LALER, SENIOR CIVIL
JUDGE-CUM- RENT CONTROLLER (SHAHDARA), KKD
COURTS, DELHI
RC/ARC No. 594/16
In the matter of :
Shri Virender Kumar Jain
S/o Late Shri J. K. Jain
R/o House No. 7/384,
Farsh Bazar, Shahdara,
Delhi- 110032
.... Petitioner
Versus
Sh. Dinesh
S/o Sh. Swarup Chand,
R/o 7/392-398/1-3,
Farsh Bazar, Shahdara,
Delhi- 110 032.
.... Respondent
Date of Institution : 25.10.2010
Date of Arguments : 17.12.2016
Date of Pronouncement : 22.12.2016
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14 (1) (a) (b) (f) (g) and (j) OF DELHI RENT CONTROL ACT
RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 1 of 17
JUDGMENT :
1. Eviction has been sought in respect of two rooms and kitchen situated on ground floor of property bearing H.No. VII/392-398/1/3, Farsh Bazar, Shahdara, Delhi- 110032 (henceforth referred to as 'tenanted premises') under the ground specified in clause (a) (b), (f), (g) and (j) to the proviso of sub section (1) of Section 14 of Delhi Rent Control Act, 1958 (in short DRC Act).
PETITION
2. Brief narration of the facts as disclosed in the petition is as under :-
2.1 That the petitioner is landlord of the tenanted premises and respondent was inducted as a tenant at monthly rent of Rs.333/-. It is an old tenancy.
2.2 That the respondent is in arrears of rent and has paid rent up to 31.12.2010. The respondent has unauthorizedly constructed more rooms in the tenanted premises causing substantial damage to the property without the permission of petitioner.
2.3 That petitioner bona fidely requires the tenanted premises for his personal use and the petitioner does not have sufficient accommodation available to him and his family members.
RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 2 of 17 2.4 That petitioner's son is married having two children who requires an independent house for his residence. The petitioner's married daughters alongwith their husband and children frequently visit the petitioner and it causes problem to family members of petitioner's son as they feel that their privacy is being disturbed.
2.5 That the petitioner requires the property in question for the purpose of constructing building as the structure in existence is very old, weak and feeble and may come down at anytime. The premises is unsafe and not conducive for human living and it requires re-building.
2.6 That the petitioner had served notice dt. 04.08.2010 which was replied in negative by the respondent vide reply dt. 12.08.2010.
Being aggrieved, the petitioner has filed the instant eviction petition.
WRITTEN STATEMENT
3. WS has been filed on behalf of respondent wherein preliminary objections such as petitioner has petitioner has concocted wrong facts in his petition; petition is not maintainable; petition is based on wrong and fabricated facts and petition is not drafted and verified as per High Court Rules have been taken. The averments to the contrary are as under:-
RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 3 of 17 3.1 That the respondent has not made any substantial addition nor he has done any alteration in the tenanted premises. No unauthorized construction has been raised by the respondent.
3.2 That the petitioner has sufficient accommodation and is having various properties i.e. multi storey property measuring about 450 sq. yards bearing no. 7/384, Farsh Bazar, Near MCD Office, Shahdara, Delhi, another property bearing no. 6/170, Farsh Bazar, Near MCD Office, Shahdara, Delhi and the petitioner is having other properties also. 3.3 That the respondent has paid rent to the petitioner up to date and he is not in the arrears of rent.
Remaining material contents of the eviction petition have been denied and the respondent prayed for dismissal of the present petition with heavy cost.
REPLICATION
4. The petitioner has not preferred to file replication to written statement of the respondent.
PETITIONER'S EVIDENCE
5. In support of petitioner's case, SPA of petitioner / his son stepped into the witness box as PW1 and tendered his RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 4 of 17 evidence by way of affidavit which is Ex. PW1/A. He has relied upon the following documents:-
Copy of SPA dt. 21.01.2013 as Ex. PW1/1(OSR); Site Plan as Ex. PW1/2;
Copy of Counter Foil of Rent Receipt as Ex. PW1/3(OSR); Photographs of property alongwith its CD as Ex. PW1/4; Legal Notice dt. 04.08.2010 as Ex. PW1/5; Postal Receipt dt. 06.08.2010 as Ex. PW1/6; Reply dt. 12.08.2010 as Ex. PW1/7;
Inspection Report as Ex. PW1/8.
PW1 has been duly cross-examined by Ld. Counsel for respondent. Thereafter, petitioner's evidence was closed.
RESPONDENT'S EVIDENCE
6 In rebuttal, the respondent stepped into the witness box as RW1 and tendered his evidence by way of affidavit which is Ex RW1/1.
RW1 has been cross-examined by Ld. Counsel for petitioner. Thereafter, respondent's evidence was closed.
RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 5 of 17 FINAL ARGUMENTS
7. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION
8. The present eviction petition has been filed under Section 14 (1) (a) (b) (f) (g) and (j) of Delhi Rent Control Act. The court shall take-up the grounds of eviction under Section 14 (1) (a) (b) (f) (g) and (j) of DRC Act one-by-one.
SECTION 14 (1) (a)
9. In order to be entitled to an eviction order under clause (a) of sub section 1 of Section 14 of DRC Act, the petitioner is required to prove :
1. Relationship of landlord and tenant
2. Existence of arrears of rent legally recoverable as on date of service of demand notice
3. Service of notice of demand
4. Failure of the tenant to pay/tender the entire legally recoverable arrears of rent within stipulated period of two months from the date of service of demand notice.
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10. The relationship of landlord and tenant is not in dispute. The monthly rate of rent being Rs.333/- is also admitted. The service of legal notice dt. 4.08.2010 Ex PW1/5 also stands admitted in as much as the same has been replied by the respondent vide reply dated 12.08.2010 Ex PW1/7. The limited question which arises for consideration in the present eviction petition is whether the legal notice dated 04.08.2010 Ex.PW1/5 can be construed to be a valid demand notice.
11. The service of a valid notice of demand furnishes the cause of action for an eviction petition under Section 14 (1) (a) DRC Act. A valid demand notice is a pre cursor to filing of eviction petition on the ground of non payment of rent.
12. In the instant petition, the demand notice Ex.PW1/5 is dated 04.08.2010 whereas in the petition, the petitioner has admitted that the rent stands paid up to 31.12.2010. The core question which arises for consideration is whether the demand notice Ex.PW1/5, issued for a period when admittedly the tenant was not in arrears of rent, would be a valid notice?
13. Section 26(1) of Delhi Rent Control Act reads as under:-
"26. Receipt to be given for rent paid. -
(1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen per cent. per annum from the date on which such payment of rent is due to the RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 7 of 17 date on which it is paid." (emphasis supplied)
14. Admittedly, there was no contract between the parties for advance payment of rent. Thus, statutory provision i.e. Section 26 (1) DRC Act comes into play whereby the tenant / respondent was required to pay the rent to the landlord / petitioner by 15th of the month next following the month for which it was payable. There is a rent receipt dated 07.05.2010 Ex.PW1/3 on record whereby the rent for the period 01.01.2008 to 31.12.2010 has been paid by the respondent to the petitioner. Thus, on the date of issuance of legal notice Ex.PW1/5 i.e. 04.08.2010, the respondent was not in arrears of rent, as the rent admittedly stands paid up to 31.12.2010.
15. Section 14(1)(a) of Delhi Rent Control Act provides as under:-
"(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date 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);" (emphasis supplied)
16. The essential requirements of section 14(1)(a) of Delhi Rent Control Act have been culled out in judgment titled Daulat Ram vs Som Nath AIR 1981 Del 354 in the paragraph reproduced below:-
"The cause of action for eviction on the ground of non- payment of rent thus consists of the following facts :
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i) Relationship of landlord and tenant;
ii) Existence of arrears of rent legally recoverable on the date of notice of demand;
iii) Service of notice of demand in the manner provided in Section 106 of the Transfer of Property Act; and
iv) Failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of service of notice." (emphasis supplied).
17. One of the essential requirement for invoking the provision of Section 14(1)(a) of Delhi Rent Control Act, is that on the date of notice, the tenant should be in arrears of rent. The words used in section 14(1)(a) of Delhi Rent Control Act are "notice of demand for the arrears of rent". Therefore, the notice of demand should be of the arrears of rent and not of the rent which is not due and would become due on a date subsequent to the date of notice. As per Black's Law Dictionary, Second Edition 'arrears' means "A remaining debt or liability after the due date."
18. In the present case, the rent stands paid up to 31.12.2010 and legal notice Ex.PW1/5 has been issued on 04.08.2010, thus, the tenant was not in arrears of rent at the date of issuance of legal notice Ex.PW1/5. The demand notice Ex.PW1/5 could not have been issued by the petitioner in anticipation that the respondent would commit subsequent defaults in payment of rent.
19. It is also pertinent to mention that in the demand notice Ex.PW1/5, there is no mention of the period since when the respondent is in arrears of rent. Moreover, by way of notice RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 9 of 17 Ex.PW1/5, the petitioner has not called upon the tenant / respondent to pay the arrears of rent. A perusal of notice Ex.PW1/5 reveals that the petitioner has merely stated that the tenancy has been terminated and the respondent has been asked to handover peaceful and vacant possession, failing which he will be liable to pay damages.
20. The requirement of service of demand notice is to offer an opportunity to the tenant to pay the arrears of rent within 2 months of service of notice of demand. The tenant has to be specifically asked to pay the arrears of rent. A notice, such as the present one, unconditionally terminating the tenancy and asking the tenant to vacate the premises, without mentioning how much rent is due, cannot construed to be a notice of demand. The term "arrears due" cannot be extended to rent which may have become due after issuance of notice of demand. The legal notice Ex.PW1/5 dated 04.08.2010 is apparently defective as the rent admittedly stands paid upto 31.10.2010.1 The respondent was not in arrears of rent on the date of issuance of legal notice. The demand notice dated 04.08.2010 Ex.PW1/5 is invalid and non est in the eyes of law. Consequently, the present petition under Section 14 (1) (a) DRC Act is without cause of action and no ground for eviction is made out under Section 14 (1) (a) DRC Act.
1 As mentioned in para 18 (a) (I) of the petition.
RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 10 of 17 SECTION 14 (1) (b)
21. The next aspect for adjudication is whether the mischief contemplated under Section 14 (1) (b) of DRC Act has been committed as the tenant has sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord.
22. It is well-settled that the burden of proving sub-letting is on the landlord, but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted upon the tenant to prove that it was not a case of sub- letting. Reliance is placed upon the case titled as "Joginder Singh Sodhi Vs. Amar Kaur 2004 (2) RCR (Rent) 493".
23. In the instant case, there is no evidence that there has been sub-letting, or parting with possession or assignment by the respondent. In para no. 16 of the petition, the petitioner has mentioned that there are no sub tenants in the tenanted premises. The date of sub-letting, the rate of rent at which the tenanted premises has been sub-let and the name of the sub- tenant has not been disclosed. The petitioner has not mentioned whether there has been vesting of possession by the respondent in another person by divesting himself not only of physical possession, but also of the right to possess. In the absence of any evidence on record regarding sub letting, assignment or parting of possession by the respondent and in view of express RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 11 of 17 admission by the petitioner, in para no. 16 of his petition, that there has been no sub-letting, no ground for eviction is made out under Section 14 (1) (b) of DRC Act.
SECTION 14 (1) (f)
24. In order to succeed under this clause, the landlord must prove (1) that the premises have become unsafe or unfit for human habitation, (2) that he bona fide requires the same for carrying out repairs and, (3) that such repairs cannot be carried out without the premises being vacated.
25. The SPA of petitioner / PW-1 has made a bald averment that the tenanted premises is unsafe and not conducive for human living. The petition is silent as regards the other two ingredients of Section 14 (1) (f) i.e. the premises is bona fidely required for carrying out repairs and the repairs cannot be carried out without the premises being vacated. The petitioner has not specified as to what are the nature of repairs which he wishes to carry out at the tenanted premises, thus, the court is unable to contemplate whether such repairs can be carried out without tenanted premises being vacated or not. No sanctioned plan for repairs of the competent authority has been filed on record. Even the petitioner has not disclosed whether he has the sufficient funds at his disposal to carry out the repairs.
RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 12 of 17 The petitioner has nowhere pleaded that he has any intention to restore the possession to the respondent after carrying out the repairs in terms of Section 20 DRC Act, rather, it is the case of the petitioner that he requires tenanted premises for residence of his son. As the essential ingredients of Section 14 (1) (f) as well as Section 20 DRC Act have not been pleaded, no eviction order can be passed under Section 14 (1) (f).
Section 14 (1) (g)
26. In order to be entitled to an order of eviction u/s 14 (1) (g) DRC Act, the petitioner is required to establish:-
(1) that the premises are required bonafide by the landlord for the purpose of building or rebuilding or addition or alteration; and (2) the court must be satisfied that specified work cannot be carried out without the premises being vacated.
27. To provide further safeguard to the interests of the tenant, Section 14 (8) DRC Act provides that no order for recovery of possession of any premises shall be made under clause (g) unless the Controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let out or that such radical alteration is in public interest, and that the plans/ estimates of such reconstruction have been properly prepared and further that necessary funds for the purpose are available with the landlord.
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28. Section 20 DRC Act provides further protection to the tenant while passing an order under Clause (g), the Controller is required to do three things viz: (1) to ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted; (2) to record the fact of the eviction in the order, if the tenant so elects; and (3) to specify in the order the date on or before which the tenant shall deliver possession so as to enable the landlord to commence the work of building or rebuilding.
29. In the present case, the petitioner has succeeded in proving that the building is an old construction and there is possibility of it being put to a more comfortable use after its reconstruction. It is not the mandate of Section 14(1)(g) DRC Act that building must be unsafe and require immediate demolition and reconstruction. RW1 has admitted that he is in possession of the tenanted premises for last 40 years. Even in the inspection report Ex.PW1/8 it is mentioned that building was constructed 50 years back and it needs reconstruction. It is not the case of the respondent that any reconstruction of the tenanted premises has been carried out subsequent to creation of tenancy. Thus, the foundation of the building must have been laid nearly fifty years ago. Even the photographs Ex.PW1/4 (colly) depict that the building is old and in dilapidated condition. An increase in accommodation and modernising the plan of building would undoubtedly make the property in question more useful for the petitioner.
30. However, it cannot be lost sight of that the condition of the building can't be held to be an absolute or real test as laid down in Tilak Ram & Others vs. Hakim Hemraj 63 PLR 68, the state of the RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 14 of 17 building is one of the ingredients which may be taken into consideration for finding whether requirement of the landlord was bonafide or not in a particular case. However, the state and condition of the building is not determinative of the issue. The Court has to apply several criteria and has to judge upon the totality of facts.
31. The petitioner has miserably failed to establish the statutory requirement of availability of sufficient funds to carry out the desired reconstruction of the property in question. The entire petition is bereft of an averment that the petitioner has required funds for reconstruction. No proposed site plan of re-construction has been filed on record. It has not been averred that the proposed reconstruction would not alter the purpose for which the tenanted premises was initially let out. The petitioner has nowhere stated as to how and where he would accommodate the tenant / respondent in the rebuilt premises. In the absence of these specific averments or cogent evidence being adduced on record, the ground under Section 14 (1)
(g) is bound to fail.
Section 14 (1) (j)
32. Now, coming to last ground i.e. Section 14 (1) (j) of DRC Act. In a petition for eviction under Clause (j), it has to be firstly determined whether the tenant has caused or permitted to be caused substantial damage to the tenanted premises. It is well-settled proposition of law that every construction or alteration does not impair the value and utility of the building and RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 15 of 17 that the construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilization aspect of the building.
33. In the instant case, the petitioner has alleged that the respondent has unauthorizedly without his permission constructed more room in the tenanted premises causing substantial damage to the property in question. The respondent has denied carrying out any construction at the tenanted premises.
34. There is no document such as site plan or photographs which could have revealed the extent of construction, if any, is carried out by the respondent at the tenanted premises. Except the self serving ipse dixit in the form of oral evidence of PW-1, there is nothing on record to establish that the construction or addition or alteration has been carried out at the tenanted premises. PW-1 has merely stated that 2 rooms were given on rent to the respondent but he had made partition. It has remained unexplained as to how the said partition has caused substantial damage to the property in question.
35. It is relevant to note that the words are "substantial damage" under Section 14 (1) (j) of DRC Act. Substantial damage is not only to be pleaded, but also to be established by the cogent evidence. No expert witness has been examined by RC/ARC No. : 594/16 Virender Kumar Jain Vs. Dinesh Page No. 16 of 17 the petitioner to prove that the structural change in the tenanted premises has brought about material impairment in the value and utility of the premises. There is not even a whisper of any damage which must have impaired the value of the tenanted premises. It has also not been specified whether the partition has tampered with the integrity of the premises or changed the out-lay of the same or any other like reason. A temporary addition which can be easily repaired without causing damage to the structure cannot amount to substantial damage to the tenanted premises. Accordingly, no ground is even made out under section 14 (1) (j) of the DRC Act.
CONCLUSION
36. Keeping in view the foregoing reasons and discussion, the present eviction petition is dismissed. No order as to costs.
File be consigned to Record Room.
Announced in the open court (Shuchi Laler)
Dated: 22.12.2016 SCJ/RC (Shahdara)
Karkardooma Courts, Delhi.
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