Delhi District Court
Kuldeep Singh Baweja vs Amarjeet Singh Khurana on 19 April, 2022
IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE(SOUTH)/
RENT CONTROL TRIBUNAL
DWARKA COURTS, NEW DELHI
RCT No.09/2019 CNR No.DLST010025252019
MEMO OF PARTIES
KULDEEP SINGH BAWEJA
S/o Late Sh.Sumer Singh,
C/o G15A, Hauz Khas, New Delhi
Appellant......
Vs.
AMARJEET SINGH KHURANA
S/o Late Sh.Harbans Singh Khurana
R/o G15, Hauz Khas, New Delhi
Respondent....
DATE OF INSTITUTION :15.04.2019
DATE OF RESERVING OF JUDGEMENT :11.04.2022
DATE OF ANNOUNCEMENT OF JUDGEMENT :19.04.2022
Argued by: Sh.Sanjeet Singh, counsel for the petitioner
Sh.H.S.Kohli & Sh.Amit Sehrawat, counsels for
respondent
JUDGMENT
1 Present appeal is directed against judgment dated 19.03.2019 passed by Ld. ARC (South), District Court Saket, New Delhi; vide which the appellant/ tenant has been held not to RCT No.-09/2019 Page No.-1 of 11 have deposited rent and has been given benefit u/sec.14 (2) Delhi Rent Control Act (hereinafter referred to as 'the DRC Act') and directed to deposit arrears of rent at the rate of Rs.1,700/per month along with interest at the rate of 15 % per annum. Vide the same order, it has also been held that in case the appellant/ tenant fails to make the payment of arrears of rent with interest, he will be liable to be evicted from the demised premise. i.e. Shop No.G15/A, Ground Floor, Hauz Khas Market, New Delhi110016.
2.1 Present respondent/ landlord has instituted a petition u/sec.14 (1) (a) of the DRC Act alleging that the tenant had defaulted in payment of rent for the periods November2006 to April2008, February2009 to March2010, June2010 to September2010 and September2015 till filing of the petition i.e. May2016. Present appellant/ tenant resisted the petition on the ground that petition by the landlord was malafide as he had been refusing to accept the rent tendered. On account of landlord refusing to accept the rent, tenant had deposited the same in the court. To show his bonafide intention of willingness to pay the rent regularly, a banker's cheque for the amount of Rs.30,600/ towards payment of rent for the period November2006 to April 2008 had been tendered. However, the landlord had not encashed the same only for the malafide reason of creating a ground for seeking eviction. Further, the landlord had been RCT No.-09/2019 Page No.-2 of 11 harassing the tenant for increasing the rent to Rs.50,000/ per month. Faced with this situation, the tenant had started depositing rent in the court. On the pleadings, the trial court framed the following issues:
1. Whether the respondent has neither paid nor tendered the whole of arrears of rent from November, 2006 till April, 2008 for 18 months and further for October, 2008 to November, 2008 as well as for the month of February, 2009 to March, 2010 and further from June, 2010 to September, 2010 within two months of the legal notice of demand for arrears of rent dated 27.02.2016? OPP
2. Whether the respondent has tendered the aforesaid arrear mentioned in issue no.1 vide reply dated 31.03.2016 accompanied by two demand drafts for the arrears of rent? OPD
3. Whether the respondent has deposited the whole arrears of rent as mentioned in issue no.1 through DR petitions in the Court? OPD
4. Relief.
2.2 On the basis of pleadings and the evidence, Ld. Trial Court, vide judgment dated 31.10.2018, dismissed the petition on the ground that demand notice was defective, in as much as demand was made for time barred period. Issues were struck off RCT No.-09/2019 Page No.-3 of 11 for the reason that amount allegedly claimed in the demand notice was timebarred. On an appeal, the Ld. Rent Control Tribunal, vide Judgement dated 05.02.2019, setaside the aforesaid judgment passed by the Ld. ARC and held the notice to be valid and remanded the matter for deciding it afresh. However, the order as regards striking off the issue was upheld. Ld. Rent Controller Tribunal, vide judgement dated 05.02.2019, held as under: "Demand may be raised by the landlord but the tenant is statutorily required to pay only the legally recoverable rent on receipt of the notice of demand."
Thus, the Ld. Rent Control Tribunal reworked the period for which the tenant was to prove payment of rent, as the period for which rent was legally recoverable.
2.3 On remand, the Ld. ARC held that the period for which payment of arrears of rent could be recovered was February2013 to January2016. For ready reference, the relevant portion is reproduced hereinbelow: "Therefore, on 27.02.2016, the rent was due for the latest month of January2016 and oldest arrears recoverable were for February2013 and all the previous arrears stood timebarred and legally not recoverable."
RCT No.-09/2019 Page No.-4 of 112.4 Ld. ARC further went on to hold that as per petitioner's own case, legally recoverable arrears of rent at the time of issuance of notice were from September2015 to February2016 only. Noticing further, that the evidence and the pleadings of the parties have been directed towards explanation regarding nonpayment/ payment of rent for the period from November2006 to April2008 and for various months of 2008; ld. ARC held that the question to be decided is as to what were the arrears that were due on 27.02.2016.
2.5 Noticing that no documentary proof of the payment for the period September2015 to January2016 had been placed on record by the tenant, it went on to hold that the tenant was unable to prove payment of arrears of legally recoverable rent for the period of September2015 till January2016. The trial court, accordingly, passed the impugned judgment.
3 Aggrieved by the aforesaid judgment, present appeal has been preferred.
4.1 Sh.Sanjeet Singh, Ld. counsel for the appellant/ tenant has informed the court that during the pendency of the appeal, rent for the disputed period, stands deposited before the Ld. ARC in compliance of the impugned judgment. Sh.Sanjeet RCT No.-09/2019 Page No.-5 of 11 Singh, however, submitted that the impugned judgment takes away the protection, which could be available to the appellant/ tenant on any subsequent inadvertent default. Finding by the Ld. Trial Court that the appellant had defaulted in payment of rent is, therefore, sought to be corrected. It is submitted that on remand, the Ld. ARC did not frame fresh issues and proceeded to decide the matter on the evidence that had been led to prove the struck off issues. There was no occasion or opportunity for the appellant/ tenant to have established or brought on record, evidence to prove that payment of rent had been tendered or made for the re-worked period of legally recoverable rent.
4.2 An application under order 41 Rule 27 CPC was also moved seeking to prove the rent deposited in the court by way of Treasury Challans. It is submitted that the appellant/ tenant had been moving petitions for deposit of rent and in those petitions, he had deposited the rent. Therefore, there was no default in payment. However, having not been afforded opportunity to lead evidence to establish those payments, a grave injustice has occasioned. It is next argued that the impugned order is a composite order u/sec.-15 (1) & 15 (7) of DRC Act which has been held to be illegal by the Hon'ble High Court of Delhi in Globetech Engineers Vs. Ajay Chadha and Ors. bearing SAO No.-32/1992 decided on 07.08.2002 by the Hon'ble High Court of Delhi.
RCT No.-09/2019 Page No.-6 of 115 Responding to the appeal Sh. H.S.Kohli, Ld. Counsel for the respondent/ landlord has argued that the trial court has committed no error. Rent deposit petitions had been dismissed in default. The tender made was not valid as the same was made on behalf of 'Sargodha Paints & Hardware'; whereas, it was Kuldeep Singh Baweja in his individual capacity, who was the tenant and not his firm. Moreover, the rent deposited was short as it stood increased by 10%. None of the remittances were with interest and, therefore, the same were invalid. As regards the application under XXXXI Rule 27 CPC, it is argued that nothing stopped the appellant/ landlord from brining on record the alleged proof of payments before the trial court, as the rent demanded in the notice for demand was for payment till the date of notice. Moreover, the evidence was available with the appellant and with due diligence, could have been proved. On the point of order being composite and thus, illegal; Sh. Kohli, counsel for the respondent fairly did not dispute the legal position.
6 I have heard Sh.Sanjeet Singh, counsel for the petitioner and Sh.H.S.Kohli, counsels for respondent and with their assistance perused the trial court record and the impugned judgment.
RCT No.-09/2019 Page No.-7 of 117.1 It is evidently a case where, my Ld. Predecessor/ Rent Control Tribunal, vide judgment dated 05.02.2019 had changed the goal post and the Ld. ARC, on remand, gave no opportunity to the parties to consequentially re-arrange the field. Ld. Rent Control Tribunal struck down the issues framed by the Ld. ARC and Ld. ARC without framing the issues afresh, went on to decide the matter and held that appellant/ tenant failed to prove that he had tendered rent or paid rent for the re-worked period for which the rent was legally recoverable. It is relevant to notice that the issues framed, required the parties to prove payment/ non-payment of the rent for the period November, 2006 to April, 2018, October, 2008 to November, 2008, February, 2009 to March, 2009 and June, 2010 to September, 2010. Whereas, on remand, the Rent Controller tested the tenant's case for the period September, 2015 till January, 2016. No issue having been framed for the period for which appellant/ tenant has been non-suited, he has a genuine grievance that he was not afforded any opportunity to prove payment of rent or tender thereof, for the period against which he has been tested by the Ld.ARC.
7.2 To overcome this difficulty, the appellant has moved an application under order XXXXI Rule 27 CPC seeking to place on record the Treasury Chalans to establish that he had deposited rent in the court for the period of September, 2015 onwards. It is also argued by Sh. Sanjeet Singh, counsel for the RCT No.-09/2019 Page No.-8 of 11 appellant that the appellant had previously dispatched rent by money orders, which were returned by the landlord. Landlord also admits having returned some of the money-orders on the ground that the same were tendered on behalf of 'Sargodha Paints & Hardware' and not by Kuldeep Singh Baweja. On this, Sh.Sanjeet Singh, counsel for the appellant has argued that the money-orders were on behalf of Kuldeep Singh Baweja as proprietor of 'Sargodha Paints & Hardware' and not on behalf of 'Sargodha Paints & Hardware'.
7.3 This court is of the opinion that the arguments raised by Sh. Sanjeet Singh, counsel for the appellant are not borne out from the facts on record. Whether the rent had been tendered by money-orders for the period in question by Kuldeep Singh in his individual capacity or by 'Sargodha Paints & Hardware'. Further, whether rent was deposited for the entire period through rent deposit petitions vide Treasury Challans. These are all questions of fact for which there is no evidence on record. It has been rightly argued by Sh. Sanjeet Singh, counsel for the appellant that it was a case of denial of opportunity to the appellant/ tenant to make good his case by leading evidence. I, therefore, hold that Ld. ARC committed a grave error in not framing the issues afresh, after the Ld. Rent Control Tribunal vide judgment 05.02.2019 had upheld striking off the issues framed by it. As a corollary to framing of issues afresh, parties were entitled to lead evidence and prove their respective cases. Appellant/ tenant, RCT No.-09/2019 Page No.-9 of 11 having been denied such an opportunity, has been burdened with the judgment holding that he has defaulted in paying the rent. Therefore, this court is of the opinion that the judgment passed by ld. ARC cannot be sustained.
8 The judgment is further unsustainable for the reason that it is legally erroneous, in as much as a composite order under Section 15 (1) & 15 (7) of the DRC Act has been passed. Hon'ble High Court of Delhi in Globetech Engineers's case (supra) has already held that such an order cannot be sustained.
9 Argument of Sh.Kohli that tender by way of money orders was not valid, can not be gone into without the money orders having been proved on record. Another argument that the rent stood increased by 10 % and was, therefore, short, is also a matter of fact for which there is no finding recorded by the Ld.Trial Court and, thus, requiring a remand. The objection that the application u/o 41 Rule 27 CPC can not be allowed because the evidence was known and could have been brought on record with due diligence does not impress this court. There was no occasion for the appellant/ tenant to have brought on record, the evidence for a fact which was not in issue. Any evidence for a fact which was not in issue before the Trial Court could not have been permitted to be brought. Appellant/ tenant was thus not given an opportunity to bring the relevant evidence on record.
RCT No.-09/2019 Page No.-10 of 11Therefore, the application u/o 41 Rule 27 CPC can not be successfully opposed.
10 For the reasons stated above, this court is of the opinion that judgment dated 19.03.2019 passed by Ld. ARC (South), District Court Saket, New Delhi can not be upheld and is set aside, with directions to the trial court to pass a fresh judgment after affording opportunities to the parties to lead evidence on framing of issues afresh. Parties to appear before Ld. ARC for fresh trial on 30.04.2022.
11 Appeal and application u/o 41 Rule 27 CPC are, accordingly, allowed and are disposed of. Trial Court record be sent back along with copy of this judgement. Appeal file be Digitally signed consigned to record room. by NAROTTAM KAUSHAL NAROTTAM Date:
KAUSHAL 2022.04.19
16:18:59
+0530
Announced in (NAROTTAM KAUSHAL)
the open court on Principal District & Sessions Judge (South) 19.04.2022 Saket Courts, New Delhi RCT No.-09/2019 Page No.-11 of 11