Delhi District Court
Sh. Darshan Kumar Raheja vs Smt. Promila on 7 April, 2008
IN THE COURT OF SH ANIL KUMAR SISODIA; ARC/DELHI
Case No:- E-1707/06
Sh. DARSHAN KUMAR RAHEJA
s/o late Sh Mohan Lal Raheja
r/o 15-A/5, East Patel Nagar,
New Delhi-110008 Petitioner
Versus
Smt. PROMILA
w/o Sh Vittal Kumar
d/o Sh Amber
r/o 5476, Plot no. 70,
First Floor, backside portion
G. B. Road, Delhi-06 Respondent
Eviction petition u/s:-14 (1) (a) & (b) Delhi Rent Control Act, 1958
DATE OF INSTITUTION: 20-10-2002
DATE OF ORDER : 07-04-2008
J U D G E M E N T:
1. The petitioner has filed the present petition u/s 14 (1) (a) & (b) of DRC Act seeking eviction of the respondent.
2. The facts of the case, as narrated in the eviction petition, are that premises premises consisting of two rooms, a small balcony opening towards gali, kitchen, bathroom and common WC and a open 1 courtyard in front of kitchen, bath WC on the first floor backside portion forming part of property no. No. 5476 built on plot no. 70, Shardanand Marg, G. B. Road, Delhi-06 more specifically shown in red colour in the site plan was let out to the respondent by the previous owners for residential purposes. The rent of the premises is Rs. 500/- per month excluding electricity and water charges. The petitioner purchased the property in 1975. It has further been stated that the respondent is in arrears of rent w.e.f 01-10-1998 and she has neither paid nor tendered the whole of the arrears of rent legally recoverable from her till date despite the service of legal demand notice dated 01-07-2002. The registered cover came back with the remarks "intimation issued". The notice sent through UPC has not come back and has been served on the respondent. It has also been stated that the respondent has sublet, assigned, or otherwise parted with major portion of the suit premises without obtaining the consent in writing of the landlord to unlawful subtenants who are all ladies and she has retained with her only half of the rooms, doors of which open in courtyard, remaining half of the room, room with the balcony, kitchen and bathroom all have been sublet, assigned or otherwise parted with possession by the respondent to about 4/5 ladies who are in exclusive possession of the tenanted 2 premises and are permanently residing there without any control of the respondent. The respondent is charging Rs. 2000/- per month as rent from them. A prayer has been made for passing an eviction order against the respondent.
3. The summons of the petition was sent to the respondent and she has contested the case by filing the written statement. She has raised the preliminary objection that petition is not maintainable for the want of permission u/s 19 of the Slum Areas (I & C) Act as the suit premises is situated in the slum areas. It has also been stated that the eviction petition is not sustainable as the respondent has already paid Rs. 500/- on 01-10-1997 and Rs. 6,000/- on 03-10-1998 in cash which have been acknowledged by the petitioner and another amount of Rs. 5,000/- was paid in cash on 15-07-1999 for which he promised to give receipt but he did not issue the receipt till date and thus he has received a sum of Rs. 11,500/- before the legal notice dated 01-07-2002. The respondent has not received any legal notice and the rate of rent of the premises is Rs. 150/- per month for the last several years and there was no arrears of rent on the date of issuance of legal notice. It has also been stated that there was no agreement between the parties for the 3 increase of rent from Rs. 150/- to Rs. 500/- per month nor the petitioner has ever claimed any enhancement by issuing legal notice. Hence the respondent is not in arrears of rent. The respondent has also not sublet, assigned or otherwise parted with the possession of the suit premises. On merits, it has been stated that petitioner has not supplied the respondent with documents to show that he is the owner of the suit property. It has however admitted that respondent is a tenant in the suit property. The respondent has also denied the fact that premises was let out for residential purposes and it has been stated that tenanted premises are non-residential and the petitioner knows about it as he is also carrying on his business in the same building. The allegations of subletting have been denied. It has also been stated that tenanted premises was let out to the respondent through her mother Smt Amber by the previous owner for non-residential purposes. Smt Amber was carrying on the profession of dancing/singing in the suit premises and was also paying income tax from her earnings. The respondent has also denied receipt of any legal notice through UPC and a prayer has been made for dismissal of the eviction petition.
4. The petitioner has filed replication to the WS and has denied the 4 contents of the WS and has reiterated the contents of the petition. The petitioner has denied that the respondent has paid any amount of Rs. 5,000/- on 15-07-1999 and it has been stated that the payment made by the respondent in October 1997 and October 1998 cleared the arrears of rent upto September 1998 and the rent is due from 01-10-1998. It has also been denied that rate of rent is Rs. 150 per month or that the respondent is not in arrears of rent. Other contents of the WS have also been denied.
5. Vide order dated 04-03-2003, Ld. Predecessor of this court dismissed an application filed by the respondent seeking dismissal of the petition on the ground that property is included in slum areas. An order u/s 15 (1) DRC Act was passed by Ld. Predecessor of this court on 14- 05-2003, directing the respondent to pay or deposit the entire arrears of rent from 01-08-1999 and further directed the respondent to deposit the future rent at the same rate. The respondent preferred an appeal against this order but the said appeal was also dismissed by Ld. RCT vide order dated 02-07-2003. Thereafter, petitioner was directed to lead his evidence.
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6. In support of his case, the petitioner has examined himself as AW-1 and has filed his examination in chief by way of affidavit and has reiterated the facts stated in the eviction petition. The witness has also proved the site plan as Ex. AW1/1, the sale deed in his favour as mark A, the copy of the family settlement between the petitioner and his brother as mark B by virtue of which the portion in dispute fell to the share of the petitioner and his brother Ashok Kumar Raheja. AW1 also proved copy of family settlement as Ex. AW1/4 by virtue of which the portion in dispute fell to the share of petitioner and he became the sole owner. The witness has also proved the carbon copy of the legal demand notice as Ex. AW1/5, the postal receipt as Ex. AW1/6 and UPC as Ex. AW1/7. The returned envelope has been proved as Ex. AW1/8. He also examined Sh Jitender Kumar as AW2 who has testified that he is doing the work of writing accounts in the shop of the petitioner and some other shops of Shardanand Marg, Delhi. He has seen the property no. 5476 built on plot no. 70, Shradhanand Marg since 1996. The respondent is a tenant in respect of two rooms, a small balcony opening towards gali, kitchen, bathroom and common WC and a small open open courtyard in front of the kitchen, bathroom and WC on the first floor backside at a monthly rent of Rs. 500/-. The rent receipts are issued to 6 the respondent by the petitioner whenever she pays the rent and signatures of the respondent or her husband are obtained on the counterfoils. The respondent has retained with her only one small portion of the room and sublet, assigned, or parted with possession of the tenanted premises to illegal subtenants who are 4/5 ladies sometimes in the year 1998/1999. One Simmi is head of these 4/5 ladies and she is paying Rs. 2,000/- per month to the respondent as rent. The respondent has recently constructed four cabins in a room and has also covered the backside balcony by raising unauthorized construction about a month ago and she is also in arrears of rent. Thereafter, the PE was closed. The respondent has examined one Vijay Kumar @ Vitthal as RW1 who has filed his examination in chief by way of affidavit. He has also proved on record, the special power of attorney in his favour as Ex. RW1/1. The rent receipts as Ex. RW1/2 to 10. The letter dated 23-09-1987 sent by the counsel for the petitioner to respondent as Ex. RW1/11 and its reply as Ex. RW1/12. The copies of assessment orders of Income Tax in the name of mother of the respondent has been proved as RW1/13 to 15 and the notices as Ex. RW1/16 to 18 and respondent's evidence was closed. 7
7. I have heard counsel for the petitioner and counsel for respondent have perused the record carefully.
8. In order to prove his case u/s 14 (1) (a) DRC Act the petitioner is required to establish the following ingredients:-
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.
The respondent has not disputed the relationship of landlord and tenant between the parties. Hence, it is an admitted case that respondent is a tenant qua the petitioner.
9. The petitioner has claimed the rate of rent to be Rs. 500/- per month whereas the respondent has claimed to be Rs. 150/- per month. In order to prove the rate of rent, the petitioner has examined himself 8 and has testified that rate of rent is Rs. 500/- per month. AW2 has also corroborated his statement. In the cross-examination, AW1 has testified that no written agreement was executed between the parties regarding increase of rent but it was an oral agreement and there is only rent receipt to show this fact. Further, cross-examination of RW1 shows that he has admitted that RW1/X1 is the counterfoil of rent receipt for the period 01-01-1997 to 30-09-1998. He has also admitted that another counterfoil Ex. RW1/X2 is for the period 01-09-1997 to 30-09-1997 and both these counterfoils are for the rent paid @ of Rs. 500/- per month. These counterfoils clearly establish that the respondent had lastly paid the rent @ Rs. 500/- per month. Although RW1 has placed on record the rent receipts Ex. RW1/2 to 10 in his examination in chief but perusal of these receipts show that they pertain to the years 1972, 1975, 1977, 1978 and 1981. The respondent has been unable to show any rent receipt subsequent to the receipts Ex. RW1/X1 and X2 @ Rs 150/- per month. The respondent has also not disputed the authenticity of the receipts Ex. RW1/X1 and X2 in the cross-examination of RW1. Hence, the petitioner has established that the rate of rent is Rs. 500/- per month.
10. The petitioner has claimed that the respondent has not paid the 9 rent since 01-10-1998 despite service of legal demand notice dated 01- 07-2002. The respondent, on the other hand, has claimed that she was not in arrears of rent when the alleged demand notice was issued. The petitioner has proved the legal demand notice as Ex. AW1/5, postal receipt as Ex. AW1/6, the UPC as Ex. AW1/7 and the returned envelope as Ex. AW1/8. The respondent has merely denied the receipt of the legal notice. The respondent has not disputed the correctness of the address on which the legal demand notice was sent. Hence, it has been admitted that legal demand notice was sent on the correct address. AW1 has testified that the legal notice has been served on the respondent through UPC and she refused to receive the same by registered AD cover. It is also not disputed by the respondent that notice was not sent by UPC. The envelope sent through UPC has not been received back. Hence, the legal notice Ex. AW1/5 is presumed to have been served on the respondent. I am supported in my views by the judgement of Vinod Nagpal Vs. Bakshi S. Kuljar Rai 1989 (2) RCR 154 (Delhi) wherein it was held that "when a notice is sent to correct address and is not received back as unserved, it has to be presumed to have been served." Hence, the service of notice of demand also stands established. 10
11. The respondent, in her WS, has taken the stand that she had paid the entire arrears of rent and there were no arrears when the legal demand notice was issued. However, perusal of the WS shows that respondent has stated that she had paid a sum of Rs. 5,00/- on 01-10- 1997 and Rs. 6,000/- on 03-10-1998 in cash to the petitioner. The petitioner has also not denied these amounts and it has been stated that the amount paid by the respondent in October 1997 and October 1998 cleared the arrears of rent upto September 1998 and she is in arrears w.e.f. 01-10-1998. The respondent has also claimed that she also paid the amount of Rs. 5,000/- in cash to the petitioner on 15-07-1999. However, the petitioner has denied having received the said amount. RW1 Vijay Kumar appearing on behalf of the respondent has also reiterated the same facts in his examination in chief. However, in the cross-examination he has not been able to show any receipts for the payment made by the respondent in the year 1999. Hence, the respondent has failed to establish the payment made by her in the year 1999. Thus, the petitioner has established that respondent was in arrears of rent since 01-10-1998.
12. The second ground for eviction taken by the petitioner is u/s 14 11 (1) (b) of DRC Act. In order prove his case the petitioner is required to satisfy the following ingredients:-
i) That there exists a relationship of landlord and tenant between the parties;
ii) That the respondent/tenant has sublet assigned or otherwise parted with the possession of the whole or any part of the tenanted premises;
iii) That such subletting assignment or parting with possession is without the written consent of the landlord.
13. The relationship of landlord and tenant between the parties is not in dispute and hence the only question remains whether the respondent has sublet, assigned or otherwise parted with possession of the whole or part of the tenanted premises without the written consent of the petitioner.
14. In order to prove his case, the petitioner has examined himself as AW1 and in his examination in chief he has testified that at the time of purchase of the property by the petitioner, the mother of the respondent was the tenant and after her death respondent has taken the premises 12 on rent. He has also testified that respondent has sublet, assigned or otherwise parted with possession a major portion of the tenanted premises without obtaining the written consent of the petitioner. He has also testified that respondent has inducted illegal subtenants who are all ladies and she is charging from them Rs. 2,000/- per month as rent and the said ladies are in exclusive possession of the entire tenanted portion and the respondent has retained with her only half of the room, the door of which open in the courtyard and the entire other portion is in complete possession and control of those ladies. In the cross-examination, he has testified that there are about 4/5 ladies subtenants and he came to know about the rate of rent being paid by the subtenants from the talks overheard by him but he has not seen anyone either accepting the rent from the subtenants or the subtenants paying rents to anyone. He has further testified that he does not know the names of those ladies. He has further testified in his cross-examination that he came to know about the fact of subletting only through the sweeper of that area as he was having a godown on the ground floor. He also admitted that he has also not shown any cabins on the site plan which are there in the tenanted premises although the same were in existence when he visited the premises for preparing the site plan. He clarified that the same were not 13 shown in the site plan as they were only the wooden partitions and were of approximately of the size of 5'' x 7''. The petitioner has also examined AW2 Jitender Kumar to prove the subletting of the premises. AW2 has testified that the respondent has retained with her only one small portion of a room and has sublet, assigned or otherwise parted with the possession of the suit premises to illegal subtenants who are 4/5 ladies sometimes in the year 1998/1999 and one Simmi is the head of those ladies and she is paying Rs. 2,000/- per month to the respondent. In his cross-examination, AW2 has testified that by illegal tenants he meant that the tenant are earning by illegal means. He also testified that in his presence the respondent had received the rent from one Simmi at the rate of Rs. 2,000/-.
15. In order to become entitled to an order of eviction u/s 14 (1) (b) of DRC Act the petitioner is required to show that the respondent has sublet, assigned or parted with possession of the tenanted premises. The expression parting with possession has been defined by Hon'ble Supreme Court in Jagan Nath (deceased) through LRs Vs. Chander Bhan & ors 36 (1988) DLT 267 SC as under:
"It is well-settled that parting with possession meant giving 14 possession to persons other than these to whom possession had been given by lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of section 14 (1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants i.e. his sons, it cannot be said that the tenant had parted with possession".
16. Similarly the expression subletting has been defined by Hon'ble Supreme Court in M/S DELHI STATIONERS & PRINTERS V/S RAJENDRA KUMAR AIR 1990 S.C.1208 as under:-
"SUBLETTING" means the transfer of an exclusive right to enjoy the property in favour of the third party and said right must be in lieu of payment of some compensation or rent and parting of legal possession means possession with the right to exclude others. Mere 15 occupation is not sufficient to infer either sub-tenancy or parting with possession."
17. From the perusal of the testimony of AW2 Jitender Kumar, it is apparent that some ladies were residing in a portion of suit property and were also paying rent to the respondent @ Rs. 2,000/- per month. In the cross-examination of this witness, nothing material has come out which could impeach his credibility. Rather in his cross-examination, he has specifically stated:- "The said lady Simmi, referred to hereinabove, had tendered the rent to the respondent in my presence saying that it was the rent for the room let out to her." This evidence, in my opinion, is more than sufficient to establish the fact that a portion of the suit property was in possession and occupation of subtenants and the said possession was in lieu of monetary consideration. Hence, the element of subletting stands established.
18. Not only this, RW1 Vijay Kumar @ Vitthal in his cross- examination recorded on 14-03-2005 stated: "There were two/three ladies at that time in the tenanted premises namely Rekha, Shobha 16 and Kamla. We are paying them money on commission basis @ 25 per cent on the total receipts. These three ladies are still occupying the tenanted premises. These three ladies are there for the last about ten years. They are residing, cooking food, sleeping and staying in the tenanted premises for all the 24 hours a day for last about ten years." This statement of RW1 itself is sufficient to establish the presence of strangers in the suit premises. Although, in his cross-examination dated 10-05-2005, RW1 has tried to wriggle out of his statement by saying that the said ladies are not residing in the suit premises as on today but no value can be attached to subsequent statement by which RW1 has tried to improve upon his previous statement. In ABDUL AZIZ V/S MOHD. YAKUB 1971 (VII) DLT 260; 1971 RCJ 492 it was held that where landlord proved the presence of person other than the tenant in the sublet house. The onus of explaining their presence is on the tenant.
19. In the present case, the respondent herself has not dared to enter the witness box. RW1 has corroborated the presence of stranger (subtenants) in the suit premises. Once such presence is established, the onus was on the respondent to have explained the nature of possession of those strangers/subtenants. However, no explanation of 17 any sought has come forward from the respondent. There is only a bald statement by RW1 that they were paying money on the commission basis to them. However, the respondent has failed to prove any record to show such payments made by her to the alleged strangers/subtenants. The respondent has thus failed to satisfactorily discharge her onus. Hence, I am of the considered opinion that petitioner has established his case that the respondent has sublet, assigned or otherwise parted away with the possession of the portion tenanted premises without the written consent of the petitioner.
20. Thus, in view of the aforesaid discussion, I am of the considered opinion that petitioner has succeeded in proving the grounds u/s 14 (1)
(a) and u/s 14 (1) (b) of DRC Act. An eviction order is accordingly passed in favour of the petitioner and against the respondent u/s 14 (1)
(b) of DRC Act and the respondent is directed to hand over the vacant and peaceful possession of the suit premises comprising of two rooms, a small balcony opening towards gali, kitchen, bathroom and common WC and a open courtyard in front of kitchen, bath WC on the first floor backside portion forming part of property no. No. 5476 built on plot no. 70, Shardanand Marg, G. B. Road, Delhi-06 more specifically shown in 18 red colour in the site plan Ex. AW1/1 (annexed with the petition) to the petitioner.
21. So far as the ground u/s 14 (1) (a) is concerned, perusal of the record shows that an order u/s 15 (1) of DRC Act has been passed on 14-05-2003. The order u/s 15 (1) DRC Act is confirmed.
22. Since this is a case of first default by the respondent, the matter has to be considered whether the respondent is entitled to the benefit of provisions of Section 14 (2) DRC Act. Accordingly, the Ahlmad/Nazir is directed to open an miscellaneous file for consideration of grant benefit u/s 14 (2) DRC Act to the respondent. No orders as to costs. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT On 07th April, 2008 (ANIL KUMAR SISODIA) Additional Rent Controller; Delhi 19 E-1707/06 07-04-2008 Pre: Sh Vithal for respondent.
Vide my separate judgement announced in the open court today, the petition is allowed u/s 14 (1) (a) and (b) of DRC Act. No orders as to costs.
File be consigned to Record Room.
The Ahlmad/Nazir is directed to open an miscellaneous file for consideration of grant benefit u/s 14 (2) DRC Act to the respondent. Put up on 08-05-2008 for consideration.
ARC/Delhi 07-04-2008 20