Delhi District Court
Sh. Naseem Ahmad Farooquie vs Smt. Raj on 28 May, 2010
IN THE COURT OF SH. PARVEEN SINGH, ARC (NE),
COURT ROOM NO. 53, KARKARDOOMA COURTS, DELHI.
E205/09
Unique Case ID No.02402C0166102009
IN THE MATTER OF:
SH. NASEEM AHMAD FAROOQUIE
S/O SH. ABDUL SAMAD
R/O F248, NEW SEEMAPURI,
DELHI. .... PETITIONER
VERSUS
SMT. RAJ
W/O SH. NEERU
M/S. RAJ BEAUTY PARLOUR,
SHOP NO. 8, F/242,
NEW SEEMAPURI,
DELHI. .... RESPONDENT
DATE OF INSTITUTION : 02.06.2009
DATE OF RESERVING THE JUDGEMENT : 28.05.2010
DATE OF JUDGEMENT : 28.05.2010
Petition No. E205/09 Page 1/12
JUDGEMENT
The present petition u/S. 14(1)(a) of the DRC Act has been filed by the petitioner against the respondent.
2. The case of the petitioner is that he is the landlord of private shop no. 8, F/242, New Seemapuri, Delhi. The respondent is his tenant in respect of this shop at a monthly rent of Rs.1400/ excluding other charges. The premises was letout in the year 1996 through an oral agreement. It is further submitted that the petitioner is the landlord of premises and the rent till 01.09.2003 was Rs.1400/ p.m. Thereafter, Rs.1540/ p.m. w.e.f. 01.09.2003 and Rs.1694/ p.m. w.e.f. 01.09.2006. It is further submitted that the respondent has neither paid nor tendered the rent w.e.f. 01.08.2002, despite repeated requests and thus, a legal demand notice dated 26.05.2008, was served on the respondent through regd. AD as well as UPC. The registered envelope was returned as `unclaimed' and the UPC was duly served upon the respondent but, she did not reply the same or pay the rent and hence, the present petition.
3. The respondent on being served with the notice of the petition, filed her Written Statement and in the Written Statement, a preliminary objection was taken that the premises in question falls in slum area and DRC Act is not applicable and thus, the present petition is not Petition No. E205/09 Page 2/12 maintainable. She further took a preliminary objection that the petitioner has no locus standi to file the present petition as, he is neither a licencee nor the actual owner of the premises and moreover, the tenanted premises belongs to Slum Department, Delhi. It is further submitted that the petitioner has not furnished the correct particulars of the respondent and the petition is liable to be rejected. The correct name of the respondent is Smt. Raj Kala, W/o Sh. Phool Singh, Monalisa Beauty Parlour, Shop No.8F/242, New Seemapuri, Delhi.
4. On merits, it is not specifically denied that there is no relationship of landlord and tenant between the parties. It is, however, denied that the rate of rent is Rs.1400/ p.m. and submitted that the rate of rent is Rs.200/ p.m. It is submitted that the rate of rent was Rs.150/ p.m. since inception of tenancy i.e. 01.10.1995 and was enhanced to Rs.200/ p.m. w.e.f. 01.10.2008. It is further denied that the respondent is in arrears of rent w.e.f. 01.08.2002 and submitted that the respondent paid rent till January 2009 @ Rs.200/ p.m. It is further denied that any legal notice, as alleged, was served upon the respondent either by regd. AD or by UPC.
5. In the replication to the written statement the contents of the written statement are denied and those of the petition are reaffirmed. Petition No. E205/09 Page 3/12
6. Thereafter, an order u/S. 15(1) of the DRC Act was passed by me on 23.11.2009.
7. Thereafter, the parties led their respective evidence. The petitioner examined himself as PW1. On the other hand, the respondent examined herself as RW1.
8. I have heard the Ld. counsels for parties and perused the record very carefully.
9. Although, the respondent in her Written Statement has denied the relationship of landlord and tenant, however, firstly, there is no specific denial of relationship of landlord and tenant between the parties. Secondly, the respondent in her crossexamination has clearly admitted that the petitioner has been collecting the rent from the tenants of the property, of which the tenanted premises forms a part, for almost six or seven years. She has further admitted that the petitioner for the last some years had been looking after the affairs of the property in question. Furthermore, in the Written Statement itself the respondent has claimed that she had paid rent upto January 2009. However, she did not disclose, to whom had she paid rent. She has admitted herself to be a tenant but, she has not disclosed who is the landlord. Considering these circumstances, I find, that there clearly exists, a relationship of landlord Petition No. E205/09 Page 4/12 and tenant between the parties.
10. The next question which needs to be decided is what is the rate of rent for the tenanted premises?
11. The petitioner appearing as PW1 deposed that the owner of the property in question is his brother who is living outside India and thus, the petitioner is dealing with the property in question and collecting the rent from the tenants. The property in question is shown in red colour in the site plan Ex.PW1/1. He further deposed that the property was letout to the respondent for commercial purposes in April 1996 through an oral agreement. He further deposed that the respondent was initially inducted as a tenant @ Rs.1400/ p.m. till 01.09.2003 and thereafter, @ Rs.1540/ p.m. w.e.f. 01.09.2003 and Rs.1694/ p.m. w.e.f. 01.09.2006, excluding electricity and other charges.
12. During his crossexamination, he denied the suggestion that the rent is Rs.200/p.m. He admitted that he had never issued any rent receipts of the rent paid by the respondent. He further denied the suggestion that in the year 199596, the rate of rent of a similar property in the locality was not more than Rs.200/ p.m.
13. On the other hand, the respondent appeared as RW1 and deposed that she is tenant since 01.10.1995. The rate of rent was Rs.150/ p.m. Petition No. E205/09 Page 5/12 since the inception of tenancy and thereafter, it was enhanced to Rs.200/ p.m. w.e.f. 01.10.2008.
14. During her crossexamination, she denied the suggestion that initially the rent was Rs.1400/ p.m. and thereafter, it was increased to Rs.1540/ p.m. and thereafter, it was enhanced to Rs.1694/ p.m. w.e.f. 01.09.2006. She further deposed that she did not have any rent receipt of the rent paid. She further deposed that she did not issue any notice or file any petition before any court asking for the rent receipts.
15. Now, from the above testimonies of the parties, it is very much clear that there is no documentary evidence on record with regard to the rate of rent. I only have the oral testimonies of the parties. Both the parties in their examinationinchiefs have deposed on the lines of their pleadings and in their crossexaminations have denied the suggestions to the contrary. The petitioner deposed that the rate of rent was initially Rs.1400/ p.m. and thereafter, it was enhanced from time to time and w.e.f. 01.09.2006, the rent was Rs.1694/ p.m. He denied the suggestion that the rate of rent was Rs.200/ p.m. Similarlly, the respondent deposed that the rate of rent was Rs.200/ p.m. and, denied the suggestion that initially the rate of rent was Rs.1400/ p.m. and thereafter, by virtue of enhancements, it became Rs.1694/ p.m. w.e.f. Petition No. E205/09 Page 6/12 01.09.2006. I have no corroboration of these testimonies from either side. Ld. counsel for the petitioner has contended that as the respondent did not issue any notice for issuance of rent receipts or file a petition in the court for the same, an adverse inference has to be drawn against the petitioner with regard to the rate of rent. I do not agree with this submission of Ld. counsel for the petitioner. On the contrary, I find that it was the bounden duty of the landlord to issue the rent receipts for the rent received by him and now, the landlord cannot take advantage of his own mistake and fasten the liability of the rate of rent claimed by him just because, he himself failed in his duty to issue rent receipts.
16. Therefore, in view of my above discussion, I find that the oral testimonies of both the parties stand on equal footings. Once, it is found that the testimonies or evidence of both the parties stand on equal footings, it has to be necessarily held that the party upon whom the primary onus to prove a fact lies has failed to discharge that onus. In the present case, the onus to prove the rate of rent was upon the landlord and in view of my above discussion, I find that the landlord/ petitioner has failed to discharge that onus. I accordingly have to hold the rate of rent to be Rs.200/ p.m., as admitted by the respondent.
17. The next question which needs to be decided is whether the Petition No. E205/09 Page 7/12 petitioner was in arrears of rent, as alleged?
18. The petitioner appeared as PW1 and deposed that the respondent has neither paid nor tendered the monthly rent w.e.f. 01.08.2002 despite repeated requests of the petitioner. The petitioner further deposed that he issued a legal notice dated 26.05.2008 Ex.PW1/2 vide regd. AD and UPC. The receipt of registered post is Ex.PW1/3 and UPC receipt is Ex.PW1/4, the `unclaimed' envelope is Ex.PW1/5. During his cross examination, he denied the suggestion that the respondent had paid rent @ Rs.200/ p.m. till date. He denied the suggestion that in the petition he had mentioned the wrong name of the respondent, her husband or her firm.
19. On the other hand, the respondent appearing as RW1 deposed that she had paid rent till January 2009 @ Rs.200/ p.m. During her cross examination, she denied the suggestion that she had not paid rent since 01.08.2002 and deposed that she had paid rent upto January 2009. She further denied the suggestion that she had received the notice dated 26.05.2008 sent to her through UPC or that she had refused that notice when it was sent through regd. post. She admitted that the reply Ex.RW1/P1 was issued on her behalf. She further deposed that her particulars given in Ex.RW1/P1 were not correct.
Petition No. E205/09 Page 8/12
20. Now, from the above evidence, it is very much clear that here again I have no evidence except the oral testimonies of the parties. However, here the fact which is different is that the onus to prove that she had paid rent upto a particular period was upon the respondent. In the oral testimonies, both the parties have stuck to their respective stands, as discussed above. However, the petitioner has claimed that he had issued the legal demand notice Ex.PW1/2 to the respondent through regd. AD, receipt which is Ex.PW1/3 and UPC, the receipt of which is Ex.PW1/4. He further deposed that the notice through regd. AD was received back `unclaimed' whereas, the notice sent UPC was not received back. Now, the counsel for the respondent has alleged that the petitioner has deliberately not given the correct particulars of the respondent. How, this shall have any bearing on the present matter, has not been explained but, if I may presume, by this contention he is trying to show that the notice was not sent with correct particulars. Therefore, the presumption of service cannot be raised. However, I find that the respondent in her crossexamination has clearly admitted that the reply Ex.RW1/P1 was issued on her behalf. In the said reply, she has been mentioned as Smt. Raj, W/o Sh. Neeru and not as Smt. Raj Kala, W/o Sh. Phool Singh. The respondent although stated that her particulars have Petition No. E205/09 Page 9/12 been wrongly mentioned in Ex.RW1/P1 but, as it has been issued on her behalf, I have to presume that these particulars are correct and now, the respondent is estopped from denying the same. Even otherwise, the address of the shop in question has been clearly shown on UPC Ex.PW1/4. There is no crossexamination of the petitioner that he did not send any legal demand notice through UPC Ex.PW1/4 or that the receipt of UPC Ex.PW1/4 is forged or fabricated document. Thus, I find that it remains unchallenged that the notice Ex.PW1/2 was sent through UPC vide Ex.PW1/4. There is also challenge to the deposition that the notice UPC was not received back or was served. I accordingly find, that the notice Ex.PW1/2 was served upon the respondent. However, admittedly, the respondent has not given any reply to this notice. This notice had clearly alleged that the respondent in arrears of rent since 01.08.2002. The respondent despite the service of this notice remained silent and therefore, adverse presumption has to be drawn against her in view of the judgement of Hon'ble High Court in Kalu Ram V/s. Sita Ram 1989 RCR (Notes) 44. I accordingly find, that at the time of service of legal demand notice Ex.PW1/2, the respondent was in arrears of rent w.e.f. 01.08.2002.
21. The next question which needs to be decided is whether the Petition No. E205/09 Page 10/12 respondent has complied with the legal demand notice Ex.PW1/2?
22. The onus to prove the same was upon the respondent. The respondent has not led any evidence to show that she had complied with the notice Ex.PW1/2. On the contrary, she had altogether denied receiving of this notice and alleged that she had paid rent upto January 2009. Both the stands have been found by the court to be incorrect and therefore, there is no question of compliance of the legal demand notice by the respondent. I accordingly find, that despite being in arrears of rent and inspite of the service of legal demand notice, the respondent has failed to pay or tender the legally recoverable rent to the petitioner within the period, as stipulated under law. I accordingly further find, that the petitioner has become entitled to an order of eviction u/S. 14(1)
(a) of the DRC Act.
However, in view of my findings above, I find, that the order u/S. 15(1) of the DRC Act, as passed by me on 23.11.2009, is required to be modified. I accordingly direct the respondent u/S. 15(1) of the DRC Act, to deposit within one month from today, the entire arrears of rent @ Rs.200/ p.m., w.e.f. July 2006 till date (period permissible under the law of limitation), in the bank account of the petitioner bearing no. 31680100001668 with Bank of Baroda, Dilshad Colony, Delhi. Petition No. E205/09 Page 11/12
23. Be heard separately on the point whether the respondent is entitled to the benefit of Section 14(2) of the DRC Act or not?
Announced in the open court on this 28th day of May, 2010.
(This judgement contains twelve (PARVEEN SINGH)
pages and each page bears ARC(NE)
my signatures) KARKARDOOMA COURTS,
DELHI.
Petition No. E205/09 Page 12/12