Delhi District Court
Smt. Promila vs Sikandar Shariff on 8 December, 2010
IN THE COURT OF SHRI RAKESH KAPOOR: DISTRICT JUDGE-I:
DELHI.
RCT APPEAL No.11/2009/08
UNIQUE ID NO. 02401C0655352010
Smt. Promila
w/o. Shri Vittal Kumar,
d/o. Shri Amber,
r/o.5476, Plot No.70
First Floor, Back side portion,
G.B.Road, Delhi 110006. ...Appellant
Versus
Sikandar Shariff
s/o. Shri K.B. Shariff,
r/o. 242, 5th Cross New
Banglore Lay Out,
Bangalore. ......... Respondent
Date of institution of appeal: 29.04.2008
Date on which judgment was reserved :02.12.2010
Date of pronouncement of judgment : 08.12.2010
JUDGEMENT :
This appeal under section 38 of the Delhi Rent Control Act ( hereinafter referred to as the Act) has been filed by the appellant herein against the order dated 07.04.2008 passed by the learned Addl. Rent Controller, Delhi.
2. Brief facts leading to the filing of the appeal are as under:
3. Petitioner Darshan Kumar Raheja - predecessor in interest of Sikandar Sharif (respondent herein) had filed a petition for eviction under section 14(1) (a) & (b) of the Delhi Rent Control Act (hereinafter referred to as "the Act:) against the respondent (appellant herein) alleging that the premises consisting of two rooms, a small balcony opening towards Gali, kitchen, bathroom and (RCT APPEAL No.--11/2009/08) (page 1 of 9) common WC and a open courtyard in front of kitchen, bath WC on the first floor backside portion forming part of property No.5476 built on plot No.70, Shardanand Marg, GB Road, Delhi (as shown red 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 been also alleged that the respondent (appellant herein) was in arrears of rent w.e.f. 1-10-1998 and she has neither paid nor tendered the whole of the arrears of the rent legally recoverable from her till date, despite service of legal demand notice dated 1/7/2002. It has further been alleged that the respondent had sub-let, assigned or otherwise parted with major portion of the suit premises without the written consent of the landlord to unlawful sub-tenants who are 4/5 ladies and the respondent has retained with her only half of the rooms., doors of which open in courtyard. The respondent is charging Rs.2000/- per month as rent from them.
4. The respondent (appellant herein) had contested the petition inter-alia on the grounds that eviction petition is not sustainable as she had already paid Rs.500/- on 1-10-1987 and Rs.6000/- on 3-10-1988 in cash which have been acknowledged by the petitioner and another amount of Rs.5000/- was paid in cash on 15/7/1999 for which the petitioner promised to give receipt but did not issue any receipt till date and thus the petitioner had received a sum of Rs.11,500/- before the legal notice dated 1/7/2002. According to her, she had not received any legal notice and that the rate of rent was Rs.150/- per month for the last several years and there was no arrears of rent on the date of issuance of legal notice.
(RCT APPEAL No.--11/2009/08) (page 2 of 9) There was no agreement between the parties for increase of rent from Rs.150/- to Rs.500/- per month, nor the petitioner had ever claimed for enhancement of rent by issuing legal notice. While admitting that she is a tenant in the suit property, the respondent denied that the premises was let out for residential purposes. It is claimed that tenanted premises are non residential and the petitioner is well aware of the same as he is also carrying on his business in the same building. She also denied the allegations of sub-letting and prayed for dismissal of the eviction petition. 5- On the basis of the aforesaid pleadings and evidence adduced on record by the parties and the documents filed on record, the learned Addl. Rent Controller had passed the impugned order dated 7/4/2008 under section 14(1)(a) and 14(1)(b) of the Act. However, considering that it was a case of first default on the part of the respondent, report of the Nazir was called for consideration of the issue whether the respondent was entitled to the benefit of provisions of Section 14(2) of the Act, or not. Subsequently, benefit under Section 14(2) of the Act has been granted to the respondent (appellant herein) by the learned Additional Rent Controller vide order dated 15/5/2010.
6- Aggrieved by the said order the respondent (appellant herein) has come in appeal in this court.
7- I have heard arguments advanced at the bar and have gone through the record 8- At the outset I may mention that during the pendency of the appeal, an application u/o.XXII rule 10 of the Code of Civil Procedure was moved by applicant/Sikandar Shariff, claiming to have purchased the suit property from the respondent Darshan (RCT APPEAL No.--11/2009/08) (page 3 of 9) Kumar Raheja by virtue of registered sale deed dated 28/7/2008. The said application was allowed by my learned Predecessor vide order dated 31/7/2009 and applicant Sikandar Shariff was substituted in place of Darshan Kumar Raheja.
9- It has been contended on behalf of the appellant that the petitioner Darshan Kumar Raheja was having no locus standi to file the eviction petition, as the suit property had not come to his share. Ld.counsel for the appellant referred to the rent receipt Ex.RW1/7 to show that the description of the tenanted premises is Shop No.5476, First Floor, backside portion, GB Road, Delhi, which portion, according to the appellant, as per family settlement Ex.PW1/4 had fallen to the share of Ashok Kumar Raheja and not Darshan Kumar Raheja. The impugned judgement has also been challenged on the plea that rent claimed for the period from 1-10-1998 to 20-10-1999 was barred by time, as the eviction petition was filed only on 21-10- 2002. Hence, no order could be passed for recovery of rent for the aforesaid period and further that there is no evidence regarding enhancement of rent from Rs.150/- to Rs.500/- per month. Lastly, it has been argued that the ground of subletting has not been proved.
10- On the other hand, learned counsel for the respondent has defended the impugned judgement and has contended that judgement is perfectly justified and no interference in the same is called for.
11- I have considered the contentions raised on both sides and have perused the impugned judgement.
12- As already stated, learned Additional Rent Controller on an appraisal of the evidence led on record had come to the (RCT APPEAL No.--11/2009/08) (page 4 of 9) conclusion that appellant herein was in arrears of rent and had failed to pay or tender the same despite service of notice of demand. Since it was a case of first default, he has granted benefit under Section 14(2) of the Act to the appellant.. The view taken by the learned Additional Rent Controller is reasonable and justified from the evidence led on record. The fact that there was a relationship of landlord and tenant between the parties, is amply borne out from the record, particularly from the rent receipts Ex.RW1/X-1 to Ex. RW1/X-10, which have been admitted by the witness of the respondent (appellant herein) namely Vijay Kumar alias Vithal RW1. Indeed, in the written statement as well, the tenant (appellant herein) had taken a plea that she had paid upto date rent to the petitioner and was not in arrears of rent. Having taken such a stand in the written statement and having admitted execution of rent receipts, it did not lie in the mouth of the appellant to claim that there was no existence of the relationship of landlord and tenant between the parties. Indeed, in the grounds of appeal, it has not been specifically averred that there was no relationship of landlord and tenant between the parties. Learned counsel for the appellant has, however, tried to build a case that the petitioner was not the owner of the suit property. The question of ownership is foreign to determination of a case under Section 14(1)(a) of the Act, wherein petitioner is bound to establish the relationship of landlord and tenant, rather than the ownership of the tenanted property. It is an established law that one may be the landlord qua the tenant but may not be the owner of the tenanted property. The contention, therefore, advanced by the learned counsel for the appellant in this regard is not tenable.
(RCT APPEAL No.--11/2009/08) (page 5 of 9) 13- Further contention that there is no evidence to the effect
that rent was increased from Rs.150/- to Rs.500/-, also has no force. The rent receipts Ex.RW1/X-2 to Ex.RW1/X-10 amply prove the fact that rent was being paid @ Rs.500/- per month.
14- The third contention raised by the learned counsel for respondent is as regards the arrears of rent for the period from 1-10- 1998 to 20-10-1999. It was contended by learned counsel that rent for the aforesaid period was not recoverable, as it was barred by time. The contention again is misplaced. My attention was drawn by the learned counsel for respondent to the order under Section 15(1) of the Act, wherein the learned Additional Rent Controller had passed an order for payment/deposit of rent w.e.f. 1-8-1999 which was permissible under the law. He did not pass any order for the period which was barred by time.
15- In the result, I hold that the order under Section 14(1)(a) of the Act passed by the learned Additional Rent Controller does not suffer from any infirmity or illegality and is accordingly re-affirmed. 16- That takes us to the other finding of the learned Additional Rent Controller, by which he has granted a decree to the petitioner under Section 14(1)(b) of the Act. It was contended on behalf of the appellant that no case of subletting or assignment or parting with possession of the tenanted premises was established in the court below. It is contended that the legal possession still remains with the appellant.
17- Learned counsel for the respondent on the other hand has pressed into service the testimony of AW 2 Jitender Kumar in order to prove the case of subletting.
18- AW 2 Jitender Kumar has testified that the appellant has (RCT APPEAL No.--11/2009/08) (page 6 of 9)
retained only a small portion of the room and had sub-let, assigned or otherwise parted with possession of the suit premises to sub- tenants. He had further deposed that one Simmi was the head of four - five ladies who are residing in the said premises since 1998-99 and said Simmi was paying a sum of Rs.2000/- per month as rent to the appellant. In cross examination, this witness claimed that in his presence appellant had received rent from Simmi - the alleged sub-tenant @ Rs.2000/- per month. He reiterated that the rent was being paid for the room let out to the said Simmi. Conspicuously enough, no suggestion was given to this witness that the aforesaid Simmi had not paid rent to the appellant or that no rent was paid in his presence. The testimony of this witness on the point of subletting therefore, has remained unrebutted and unassailed. 19- The learned counsel for respondent has then referred to the statement of RW 1 Vijay Kumar - husband of the appellant who in his cross examination admitted that the appellant was not residing in the tenanted premises and was living with him at premises No.19/2, Old Rajender Nagar, New Delhi. He gave credence to the testimony of AW 2 Jitender Kumar, when he stated that the tenanted premises was being used to hold dances, music and singing. He also admitted in his cross examination that there were three ladies occupying the tenanted premises, who was residing, cooking food, sleeping and staying there for all the 24 hours of day for the last about 10 years. It is, therefore, clear that the petitioner had established the presence of somebody else in the tenanted premises than the tenant, by means of evidence led on record. It was, thus, for the tenant/appellant to establish as to in what capacity the said persons were present in the tenanted premises. In a case titled as (RCT APPEAL No.--11/2009/08) (page 7 of 9) Mukesh Seth and another Vs. A.B.Lal and Sons and others, 2010 (117) DRJ 12, our own High Court held as under :-
"The learned ARC also totally ignored Section 106 of Indian Evidence Act which provides that a fact in the special knowledge of a person has to be proved by that person. Whether respondent No.1 was continuing with its operation in Delhi was within the special knowledge of respondent No.1 and it was for respondent No.1 to prove by cogent evidence in the Court that its business was continuing in Delhi and respondent no.3 was its employee. No document worth name showing any connection whatsoever between respondent No.1 and respondent No.3 was proved on record by either of the respondents. This burden could not have been shifted upon the landlord because the landlord was not in special knowledge of this fact."
It is, therefore, clear that burden lay heavily on the appellant to prove that she was still in legal possession of the tenanted premises and had not parted with the same. The appellant has miserably failed to discharge the said burden. Strangely enough, she did not enter the witness box to prove her stand and did not explain as to in what capacity strangers were present in the premises in question. In AIR 1988 SC 1362 (Jagan Nath through L.Rs. Vs. Chander Bhan and others), Hon'ble Supreme Court held that parting with possession meant giving to persons other than those to whom possession had been given by the lease. A similar situation obtains in this case. The petitioner had, therefore, even ample evidence of the fact that the suit premises had been sublet and its possession had been parted with by the appellant. 19- In view of the above discussion, I do not find any merit in the appeal. Same is hereby dismissed with costs of Rs.5,000/-
Let a copy of this order be sent to the trial court while returning the records.
(RCT APPEAL No.--11/2009/08) (page 8 of 9)
Appeal file be consigned to record room.
Announced in open court (RAKESH KAPOOR)
on 8th December, 2010 RENT CONTROL TRIBUNAL
DELHI.
(RCT APPEAL No.--11/2009/08) (page 9 of 9)