Delhi District Court
Sh. Sudhir Saran Bhatnagar vs Sh. Gian Chand Awasthy on 10 October, 2011
IN THE COURT OF SH. RAVINDER SINGH, ADDITIONAL
RENT CONTROLLER2 (EAST), KKD COURT, DELHI.
E179/05
(Case I.D. No.02402C0492272005)
Sh. Sudhir Saran Bhatnagar
S/o late Sh. Sukhbir Saran Bhatnagar,
R/o 234, Farsh Bazar,
Shahdara, Delhi32. ...Petitioner
Versus
Sh. Gian Chand Awasthy
S/o Sh. Juli Ram
R/o F6, Navin Shahdara,
Delhi32
and
Godown Private No.3A,
Municipal No.1/1097,
Railway Road, Harsaran Niwas,
Shahdara, Delhi51 ...Respondent
Date of filing of petition : 20/09/2005
Date of argument : 05/10/2011
Date of Judgment : 10/10/2011
E-179/05 Page 1 of 19
Petition u/s 14 (1) (a) & (j) DRC Act
JUDGMENT:
1. Sh. Sudhir Saran Bhatnager (hereinafter called petitioner) filed this eviction petition u/s 14 (1) (a) & (j) DRC Act against Sh. Gian Chand Awasthy in respect of premises i.e. godown private No.3A, Municipal No. 1/1097, Railway Road, Harsaran Niwas, Shahdara, Delhi51 as shown in red colour in the siteplan attached (hereinafter called tenanted premises).
2. Petitioner alleged that he is the owner/landlord of tenanted premises which is under tenancy of respondent on a monthly rent of Rs.10/ besides other charges. Petitioner further alleged that respondent has neither paid nor tendered the arrears of rent to him from 01/02/98 @ Rs.10/p.m within period of two months from the service of legal notice of demand dt. 20/05/05. Petitioner further alleged that he sent notice of demand dt.20/05/05 to respondent through registered cover with A.D. Card and UPC on his residential as well as on the tenanted premises. Petitioner further alleged that notice sent through registered post received back undelivered however notice sent to respondent through certificate of posting on both the addresses of respondent were duly received by him as same did not came back. Petitioner further alleged that earlier an eviction petition bearing no.E297/85 u/s 14(1) E-179/05 Page 2 of 19
(a) DRC Act was decided by the then Ld. ARC on 24/02/98 and benefit u/s 14(2) DRC Act was extended to the respondent. So respondent has committed second default on nonpayment of rent.
3. Petitioner further alleged that tenanted premises is a godown but it is not being used as godown by respondent and same is misusing by him by running shop/factory. Petitioner further alleged that respondent has violated various provisions of M.C.D. by making substantial changes in the tenanted premises without obtaining permission of competent officer or M.C.D. Petitioner further alleged that due to substantial material change done by respondent in the tenanted premises, same has become very weak and dangerous to inhabitation and is likely to be collapsed at any moment accordingly petitioner filed the present petition.
4. Summons for settlement of issues were served upon the respondent who put his appearance and filed written statement wherein he stated that notice has not been served or sent to him. He further stated that he has paid the rent regularly till 31/08/05. Respondent further stated that petitioner is not in habit of issuing rent receipt and whenever he demanded the receipt from the petitioner, he avoided to issue the same on the pretext that he will issue the receipt for a lump sum amount consisting of arrears of rent of E-179/05 Page 3 of 19 three years. Respondent further stated that no substantial damage has been caused by him in the tenanted premises as alleged in the petition. He further stated that petitioner is also not showing any substantial damage and has not mentioned any averment which shows that he has lowered the value of suit property. Respondent further alleged that petitioner earlier filed a petition on the ground of substantial damages which was dismissed by the court of then Ld. ARC. On merit, respondent stated that he is using the premises for godown purpose only and it is not being used as shop or factory. Respondent further alleged that property has not been properly shown in siteplan and site plan filed by the petitioner is not according to the site. Respondent further alleged that he used to make the payment of rent sometimes for one year or more in lump sum. Respondent further alleged that rent was paid by him but sometimes he paid the rent through his son when he remained out of station in an Ashram i.e. PAGLA BABA at Vrindavan where he spent atleast 2025 days in a month in that Ashram. Respondent further stated that no notice of demand dt.20/05/05 was ever served upon him. Respondent further stated that respondent has not sent the legal notice dt.20/05/05 through registered post or under certificate of posting and if there is any postal receipt then same is procured and manipulated. Respondent further stated that most of the time, he E-179/05 Page 4 of 19 lives at PAGLA BABA Ashram, Vrindavan being disciple of PAGLA BABA and so in the month of May and June 2005, he was not available at his house and tenanted premises remained locked during this period as he left for Ashram on 02/05/05 and came back on 28/6/05. Respondent further alleged that he has not caused any substantial change in the tenanted premises. Respondent further stated that due to passage of time, wall and gate of the godown became rotten and liable to be changed. Respondent further alleged that the wall of the tenanted premises required repair but petitioner has not carried out any repair till date so he entitled for suspension of rent as premises cannot be used without carrying repair. Accordingly he prayed for dismissal of the petition.
5. Petitioner filed replication wherein he stated that respondent has malafidely alleged that he was staying in Ahram for 2025 days in a month to show that the notice of demand issued to him in the instant case through registered post as well as UPC on his residential as well as tenanted premises has not been served upon him and he further reaffirmed the facts as stated in the petition and also refuted the contents of written statement.
6. The Ld. Predecessor of this court passed an order u/s 15(1) DRC Act on 17/05/06 and thereby directed the respondent to make the payment of E-179/05 Page 5 of 19 the arrears of rent dues @ Rs.10/p.m. w.e.f. September 2005 in the mode and manner reflected therein. Thereafter parties were called to lead their evidence.
7. In order to prove his case, petitioner examined himself as PW1. Petitioner generally deposed on the same lines of his petition. Petitioner, during his examination, produced the copy of legal demand notice dt.20/05/05 Ex.PW1/1, postal receipts Ex.PW1/2 and Ex.PW1/3, returned envelop with AD Card Ex.PW1/4 and Ex.PW1/5. Receipt of UPC on both the addresses of respondent Ex.PW1/6. Order of the then Ld. ARC, Ms. Asha Menon dt. 24/02/98 is Ex.PW1/7 and siteplan Ex.PW1/8.
8. The respondent examined three witnesses in support of his case i.e. he himself examined as RW1, Suresh Kumar Awasthi as RW2, R.P. Mishra from office of Sr. Supttd. Post Office, Mathura, U.P. as RW3.
9. RW1 deposed on the same line of his written statement. He produced entries of passbook of various dates made by employee of the post office Mathura, Vrindavan Ex.RW1/1.
10. RW2, the son of respondent deposed that he used to go with his father to pay the rent but sometimes he used to go alone when his father was not in Delhi. RW2 further deposed that his father regularly paying/tendering the rent to petitioner w.e.f 01/02/98 and his father paid rent till August 2005. E-179/05 Page 6 of 19 RW2 also deposed that after 31/08/05, he alongwith his father went to pay the rent to petitioner but he did not accept the same. RW2 further deposed that petitioner is not in habit of issuing of rent receipts. RW2 further deposed that his father spent most of his time in the Ashram and he was busy in construction of shrine in the sAshram of PAGLA BABA so he was not available w.e.f May 2005 to June 2005.
11. RW3 produced the ledger of Leela Dham Post Office in which entries of transactions regarding deposit and withdrawal of money in account no.500806 which is in the name of respondent Ex.RW3/1. RW3 admitted that for every withdrawal the presence of the depositor/withdrawer is necessary at the counter of post office on the very much date of the withdrawal. RW3 further testified that depositor/withdrawer has to sign on the withdrawal form. RW3 also produced the withdrawal form w.e.f 2004 to 2010. Same is Ex.RW3/2. RW3 admitted that depositor G.C. Awasthi withdraw money from time to time from the account no.500806.
12. In cross examination, RW3 deposed that the withdrawal which was made by the depositor had been verified by the subpost master of the branch but he has not dealt with the withdrawals.
13. I have heard the arguments of ld. counsel for the parties and also E-179/05 Page 7 of 19 gone through the written arguments of respondent and the material available on record.
Relief u/s 14 (1) (a) DRC Act
14. To prove his case u/s 14 (1) (a) DRC Act, the petitioner is required to be proved that :
(i)relationship of landlord and tenant;
(ii)service of notice of demand;
(iii)existence of arrears of rent legally recoverable on the date of service of demand notice;
(iv)failure of the tenant to pay/tender the entire legally recoverable arrears of rent within stipulated period of two months from date of service of demand notice.
15. The landlordtenant relationship and rate of rent of tenanted premises i.e Rs.10/p.m is not disputed between the petitioner and respondent and therefore no deliberation is required for landlordtenant relationship as well as rate of rent of tenanted premises accordingly issue no.(i) stands satisfied.
16. PW1 deposed that respondent is a habitual defaulter in making payment of rent and he has withheld the rent w.e.f 01/02/98 and he did not pay E-179/05 Page 8 of 19 the same to him despite repeated requests so he served the legal demand notice dt.20/05/05 through registered cover with A.D. and UPC on the address of tenanted premises as well as on the residential premises of the respondent. PW1 also deposed that the legal notice of demand sent to respondent through registered A.D. returned back by the postal authorities from both the addresses of respondent. The registered envelop with A.D. card are Ex.PW1/4 & 5. PW1 further deposed that the notice sent under certificate of posting on both the addresses of respondent has not been received back so notice sent to respondent under certificate of posting was duly served upon him.
17. RW1 deposed that he was continuously staying at PAGLA BABA Ashram in the month of May and June 2005 so he was not available at his house and tenanted premises also remained locked during this period. He also deposed that he left for Ashram on 02/05/05 and came back to his house on 28/06/05 so the question of service of notice upon him does not arrives. RW1 further deposed that he has never received any notice and nor any notice was sent to him by the petitioner and if there is any document then same is forged and manipulated by the petitioner. RW2, the son of respondent also deposed that RW1 left for Ashram for 02/05/05 and came back to his house on 28/06/05 and during that period he was not in Delhi. The affidavit of RW2 E-179/05 Page 9 of 19 reveals that he lives on the same address of RW1. RW2 has not deposed that the legal notice addressed to RW1 sent through UPC has not received on his residential address. RW1 admitted that F6, Naveen Shahdara, Delhi is his residential address and same is usually kept open and on rare it remained locked. RW1 also admitted that his entire family including himself resides at F6. He also admitted that any correspondence addressed to him at the address of premises in question is received by him. He also deposed that any correspondence addressed to him at the tenanted premises also received by him. RW1 denied the suggestion to the effect that he had intentionally refused to receive the legal notice dt.20/05/05 sent through registered A.D. RW1 further denied the suggestion to the effect that he received the said notice which had been sent to him in another mode i.e UPC on both the addresses. During cross examination, PW1 denied the suggestion that he got the remarks on registered A.D. cover Ex.PW1/4 & 5 in collusion with the postal authority. This suggestion of respondent clears that petitioner dispatched the legal demand notice to the respondent hence there is no need to prove dispatch register in the present case. Accordingly the case law relied by the ld. counsel for respondent Shiv Kumar Vs. Hansita 171(210) DLT 3469 is not applicable in the present fact and circumstances of this case.
E-179/05 Page 10 of 19
18. One of the arguments of ld. defence counsel that petitioner deposed beyond his pleadings as in his evidence affidavit, he deposed that notice sent through UPC was served upon respondent whereas in his petition, he pleaded that he sent the notice through UPC. So deposition of PW1 regarding service of notice, cannot be taken into account. In support of his arguments, he relied upon Fats Inc. Vs. Zen Technologies Ltd. 149 (2008) DLT 260 and Prakash Ratan Lal Vs. Mankey Ram 166 2010 DLT 629. It is not disputed that the petitioner in para 18 (b) of his petition categorically stated that the copies of the said notices sent to respondent by him under certificate of posting on both the aforesaid addresses of respondent was duly received by him(respondent). It is clear from the aforesaid averment that the notice sent by petitioner through UPC has been served upon the respondent so under these circumstances, it cannot be said that PW1 deposed beyond its pleadings hence the ratio of case laws relied by the ld. counsel for the respondent does not applicable in the present fact and circumstances.
19. It is not disputed that the notice sent through registered post with A.D. card received back undelivered from the residential and tenanted premises of respondent with endorsement of postman dt.24/05/05 "not met"
and endorsement of postman dt.25/05/05 "information delivered". The E-179/05 Page 11 of 19 registered envelop Ex.PW1/4 & 5 reveals that the concerned postman visited twice to the premises of respondent i.e. on 24/05/05 and 25/05/05 and he delivered the information but despite this, no one from respondent went to post office for collecting the envelop. PW1 also denied the suggestion to the effect that he got prepared receipt of UPC Ex.PW1/6 in connivance with the postal authority. Admittedly no witness has been examined by the respondent to prove that receipt of UPC Ex.PW1/6 was got prepared by petitioner in connivance with the postal authority. It is not disputed that receipt of UPC Ex.PW1/6 bears the correct address of tenanted premises as well as residential premises of respondent. Admittedly, it is not the case of respondent that his family members has not informed about the notice Ex.PW1/1 as he was in Vrindavan during that period. So it is hardly any matter whether he is in Ashram of PAGLA BABA or not because the personal service in case of UPC is not required and it is simply delivered to the premises of addressee.
20. Since the UPC and registered post envelop Ex.PW1/6 and Ex.PW1/4 & 5 containing legal demand notice bear the correct address of respondent and legal demand notice Ex.PW1/1 sent through UPC has not been returned back whereas registered post envelop Ex.PW1/4 & 5 returned back with endorsement of postman that 'not met' and 'information delivered'. In E-179/05 Page 12 of 19 view of above discussion, I am of considered opinion that legal demand notice Ex.PW1/1 was duly served upon respondent through UPC. Accordingly issue no.(ii) stands satisfied.
21. PW1 deposed that respondent has not been paying the rent since 01/02/98. PW1 denied the suggestion that respondent has been making payment of rent regularly but he did not issue rent receipts to him. Admittedly no suggestion has been put to PW1 that respondent was not in arrears of rent w.e.f 01/02/98. RW1 deposed that he had never defaulted in making payment of rent and he has been paying rent regularly from 01/02/98 onwards and same has paid uptill august 2005. RW1 also deposed that no rent receipt was ever issued to him on one pretext or other. He further deposed that petitioner used to take lump sum rent for period of one years as amount of rent is very small and therefore it does not look nice to accept such a meager amount. It is admitted by the respondent that he paid the rent for one year or more in lump sum and even sometimes he paid the rent through his son as he remained out of station in Ashram of PAGLA BABA, Vrindavan. During crossexamination, RW1 admitted that he had demanded the rent receipts from the petitioner but he did not issue the same. RW1 admitted that he had never issued any notice to the petitioner regarding issuance of rent receipts to him against the rent paid E-179/05 Page 13 of 19 by him. RW1 denied the suggestion that he had not paid the rent dues w.e.f 01/02/98. RW1 admitted that he has not paid/deposited the rent in court. RW1 also admitted that he had not maintained any record for payment of rent by him to the petitioner but on the other hand, RW2 deposed that his father must have maintained the record regarding the last payment of rent but he do not know whether he filed the record or not. This testimony of RW2 is contrary to testimony of RW1 as he clearly deposed that he does not maintain any record regarding payment of rent. Further RW2 deposed that he used to go alongwith his father for payment of rent. This testimony of RW2 is also contrary to RW1 as RW1 has not testified that RW2 also accompanied him when he went to pay the rent to petitioner.
22. RW2 also admitted that respondent never served petitioner with any notice regarding nonissuance of rent receipts against payment of rent by him nor he initiated any proceedings under DRC Act. RW2 also denied the suggestion to the effect that respondent neither paid nor tendered the arrears of rent w.e.f 01/02/98.
23. From the testimony of RW1 and RW2, it is clear that they have failed to prove that they have paid the rent to the petitioner w.e.f 01/02/98. Their case is that they paid the rent for one year or more in lump sum but E-179/05 Page 14 of 19 petitioner has not issued rent receipts. Respondent admitted that he has not served any notice upon petitioner for demand of rent receipts. Admittedly u/s 26(2) DRC Act, the tenant is entitled for receipt of payment of rent from landlord or his authorized agent. If rent is paid to the landlord and he or his authorized agent refused or neglect to deliver to the tenant a receipt referred to in subsection 2 of Section 26 DRC Act, the tenant may approach to the controller for the certificate to him for the payment of rent u/s 26(3) DRC Act. Admittedly petitioner has not approached to the court for such certificate regarding payment of rent to petitioner further he has not produced any document which suggest that he has paid the rent to the petitioner in lump sum for a period of one year or more. In view of above discussion, I am of considered opinion that respondent is in existence of arrears of rent legally recoverable on the date of service of demand notice accordingly issue no.(iii) stands satisfied.
24. PW1 has proved the service of legal demand notice dt.20/05/05 Ex.PW1/1 for demanding arrears of rent from the respondent. PW1 also deposed that despite service of legal demand notice respondent neither paid nor tendered the rent to him within the stipulated period of said notice. RW1 deposed that he has paid the rent till 31/08/05. RW2 also deposed that rent E-179/05 Page 15 of 19 stand fully paid till August 2005. Further RW1 and RW2 both deposed that petitioner is in habit of accepting the rent for the period of one year and more but neither RW1 nor RW2 deposed when they had paid the rent to petitioner till August 2005. Admittedly it is the case of respondent that he is paying the rent in lump sum for period of one year or more. It is further pertinent that neither RW1 nor RW2 deposed whether they had paid the rent in advance or after expiry of one year. In view of this, it is clear that respondent has not paid the rent within stipulated of two months from the date of service of legal demand notice Ex.PW1/1. Accordingly petitioner established that respondent has failed to pay/tender the entire legally recoverable arrears of rent within stipulated period of two months from date of service of demand notice. Accordingly issue no.(iv) also stands satisfied.
25. In view of aforesaid discussions, petition u/s 14 (1) (a) deserves to be allowed.
Relief u/s 14 (1) (j) DRC Act
26. To prove his case u/s 14 (1) (j) DRC Act, the petitioner is required to be proved that :
i) the tenant had made the construction,
ii) the construction was without consent of the landlord; E-179/05 Page 16 of 19 and
iii) the said construction has materially effected the premises and further the construction which had been carried out by the tenant as aforesaid did materially alter the premises.
27. PW1 deposed that respondent in utter disregard of the term of tenancy and in violation of relevant provisions of D.M.C. Act has caused substantial damages in the tenanted premises by breaking the wall and the gate of said godown and converting the same into two portion as duly indicated in the siteplan Ex.PW1/8. RW1 deposed that he has never made any change in the suit premises nor violated D.M.C. provision nor changed the position of the gate nor broke any wall. He also deposed that the suit premises is in the same position when it was letting out. He further deposed that petitioner earlier also filed a petition on ground of damages of the suit premises which was dismissed.
28. It is admitted fact that petitioner filed earlier petition u/s 14 (1)
(a), (d) & (j) DRC Act. The said petition was dismissed u/s 14 (1) (d) & (j) DRC Act however it was allowed u/s 14 (1) (a) DRC Act vide judgment dt. 24/02/98 Ex.PW1/7. The judgment Ex.PW1/7 reveals that petitioner claimed in that petition that respondent had caused the substantial damages to the E-179/05 Page 17 of 19 property by making a wall and gate in the godown and converting the same into two portion but in the present petition, petitioner deposed that respondent has broke the wall and gate of the godown and converted the same into two portion. The testimony of PW1 is very vague regarding division of godown into two portions as PW1 has not deposed which wall & gate of tenanted premises was broken by the respondent. Further petitioner has not filed any report of architect to show that respondent has broke the wall and gate of the godown. Further he has not deposed when respondent has broke the wall and gate of the godown. It is also pertinent that in siteplan Ex.PW1/8, petitioner has shown the tenanted premises in one portion and not of two portion of the godown.
29. It is also pertinent that in earlier petition, petitioner claimed that by making the wall and gate in the godown, respondent converted the godown into two portions but in the present petition he took different stand that respondent by breaking the wall and gate, he converted the same into two portions. It is pertinent how one can convert single portion of premises into two portions by breaking the wall and gate of the premises.
30. In these circumstances, I am of the considered opinion that petitioner has failed to prove all the ingredients of Section 14 (1) (j) DRC Act E-179/05 Page 18 of 19 and accordingly this petition is liable to be dismissed u/s 14 (1) (j) DRC Act.
31. In view of aforesaid findings recorded, the petition u/s 14 (1) (a) DRC Act is allowed and petition u/s 14(1) (j) DRC Act is dismissed. Ordered accordingly.
32. It is admitted fact that petitioner earlier filed petition u/s 14 (1)
(a), (d) & (j) DRC Act. The said petition was dismissed u/s 14 (1) (d) & (j) DRC Act whereas it was allowed u/s 14 (1) (a) DRC Act vide judgment dt. 24/02/98 Ex.PW1/7. It is also admitted that respondent has give benefit of Section 14(2) DRC Act vide judgment Ex.PW1/7. Since respondent earlier got the benefit u/s 14(2) DRC Act vide judgment Ex.PW1/7 hence he is not entitled to get benefit u/s 14(2) DRC Act again accordingly an eviction order in respect of the premises in question i.e. godown private No.3A, Municipal No.1/1097, Railway Road, Harsaran Niwas, Shahdara, Delhi51 as shown in red colour in the site plan is hereby passed in favour of the petitioner and against the respondent.
(Announced in the open (RAVINDER SINGH)
court on 10/10/2011) ADDL. RENT CONTROLLER2(E)
KKD COURT, DELHI.
E-179/05 Page 19 of 19