Delhi District Court
M/S Vinay Saigal & Vijay Saigal vs Sh. Joginder Lal Kuthiala on 18 September, 2021
IN THE COURT OF SHRI DINESH KUMAR SHARMA :
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT,
PATIALA HOUSE COURTS: NEW DELHI
RCT Nos. 118/16 and 128/16
1. M/s Vinay Saigal & Vijay Saigal
2. Sh. Raju Saigal
All At: B50, Kuthiala Building
Connaught Place, New Delhi .....Appellants
Versus
1. Sh. Joginder Lal Kuthiala
2. Sh. Jatinder Lal Kuthiala
Both S/o Late Sh.Bishan Lal Kuthiala
3. Smt. Sushma Kuthiala
W/o Sh. Joginder Lal Kuthiala
All R/o: 1, Canal Road
Jammu180001(J&K) ....Respondents
Date of filing of appeal (RCT No. 118/16) : 03.03.2015
Date of filing of appeals (RCT No. 128/16) : 22.04.2015
Date of arguments : 04.09.2021
Date of judgment : 18.09.2021
JUDGMENT
1. Vide this common judgment, I shall dispose of the aforesaid appeals bearing RCT nos. 118/16 & 128/16, filed under Section 38 of The Delhi Rent Control Act, 1958 ("DRC Act" in short) RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 1 of 24 by the appellants, challenging the impugned orders dated 29.01.2015 & 27.02.2015. The Ld. Rent Controller vide impugned order dated 29.01.2015 held that the respondents/tenants are liable for eviction under Section 14(1)(a) of DRC Act. Vide impugned order dated 27.02.2015, the Trial Court granted the benefits to the respondents/tenants under Section 14(2) of DRC Act.
2. An eviction petition bearing E. No. 18/09 was filed by Sh. Joginder Lal Kuthiala, Sh. Jatinder Lal Kuthiala and Mrs. Susham Kuthiala, against M/s Vinay Saigal Vijay Saigal under Section 14(1)
(a) of DRC Act, alleging therein that the premises bearing no. B50, Kuthiala Building, Connaught Place, New Delhi110 001, was let out to M/s Vinay Saigal Vijay Saigal (partnership firm) for office purpose @Rs.125/ per month excluding other charges. It was alleged that the respondents neither paid nor tendered the whole of the arrears of rent and interest for the last 17 years recoverable from them within two months of the service of demand notice dated 07.02.2007. The notice was duly served upon the respondents on 08.02.2007. The respondent after receipt of the demand notice, sent an account payee cheque bearing no. 138088 dated 06.03.2007 drawn on Bank of India, Greater Kailash Branch, for Rs.4625/. It was stated that since the said cheque did not represent the entire arrears of rent and interest, the petitioners did not encash the cheque sent by the respondents.
RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 2 of 24
3. It is pertinent to mention herein that other allegations in the eviction petition regarding the misuse, subletting and unauthorized constructions, have not been discussed herein as a separate eviction petition bearing E.No. 93/09 has been filed against the respondents.
4. The respondents in their written statement stated that Vinay Saigal, Vijay Saigal and Raju Saigal, sons of the original tenant Sh. J.P. Saigal, are the cotenants in the premises in dispute. It was further submitted that premises was let out for residentialcumcommercial purposes and was never misused. It was stated that premises in dispute was let out to Sh. J.P. Saigal in or around 1950 by the previous owners and late Sh. J.P. Saigal became the tenant of the petitioners and their predecessorininterest on purchase of the property from the previous owners. It was further stated that respondents had remitted the legally recoverable rent to the petitioners within two months of the service of the alleged notice of demand and the notice of demand was duly complied with within two months. It was further stated that interest was never the part of the rent and petitioners have no right to claim interest in these proceedings.
5. In the rejoinder, averments made in the petition were re affirmed and the submissions made in the written statement were denied. In the rejoinder, it was stated that the petitioners had filed a civil suit bearing CS No. 635/1995 against the respondents, which was decided by the court of Sh. Rakesh Pandit, Ld. Civil Judge, on RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 3 of 24 27.08.2006, which is binding and operates as resjudicata. In view of this judgment, the respondents are estopped from taking such an objection. It was reiterated that respondents are tenants in the suit premises. It was further stated that respondent did not tender the whole of the arrears of rent as per demand notice. The cheque remitted by the respondents neither covered the entire period nor the interest payable by the tenant under Section 26 of DRC Act. It was further stated that interest forms integral part of the rent and the tenant is liable to pay the same @15% per annum.
6. It is pertinent to mention herein that in the petition, Sh. Raju Saigal was impleaded as respondent on an application filed under Order 1 Rule 10 CPC vide order dated 02.01.2010. An order under Section 15(1) of DRC Act was passed on 24.03.2008 whereby the respondents were directed to pay or deposit the entire arrears of rent @Rs.125/ per month w.e.f. 01.02.2004. The Ld. Rent Controller vide order dated 29.10.2010 consolidated the eviction petitions bearing No. 18/09 filed under Section 14(1)(a) of DRC Act and eviction petition bearing no.93/09 filed under Section 14(1)(b)(c)&(j) of DRC Act, relating to property bearing no. B50, Kuthiala Building, Connaught Place, New Delhi. Vide order dated 13.10.2010, it was directed that evidence shall be recorded in petition bearing No. 18/09.
7. On behalf of petitioners, Sh. Bihari Lal Walia has been examined as PW1.
RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 4 of 24
8. It is pertinent to mention herein that perusal of the record indicates that initially an affidavit dated 16.07.2008 was filed by PW1 Bihari Lal Walia, thereafter, another affidavit of PW1 dated 06.08.2010 was filed subsequent to impleading of Sh. Raju Saigal as respondent. However, after consolidation of eviction petitions bearing Nos. 18/09 and 93/09 vide order dated 29.10.2010, Sh. Bihari Lal Walia, filed a consolidated affidavit on the record.
9. In regard to Section 14(1)(a) of DRC Act, PW1 stated in the affidavit that he is the attorney and manager estate of the petitioners and in their services for the last 40 years and looking after and managing their properties in Delhi. The petitioner placed on record the Special Power of Attorney as Ex.PW1/1 and PW1/1A. PW1 stated that he is well conversant with the facts of the case and he deals with all the tenants of the petitioners and collects rents, issue receipts and also deals with local authorities on behalf of petitioners and as such, he has direct knowledge of the facts and circumstances of the present case. PW1 stated that a firm M/s Vinay Saigal Vijay Saigal was a tenant of property bearing no. B50, Kuthiala Building, Connaught Place, New Delhi, @Rs.125/ per month excluding electricity, water and other charges. The tenancy by the firm was duly accepted in the previous litigation. PW1 further deposed in the affidavit that the tenant has not paid the whole of the arrears of rent and interest for the last about 17 years despite repeated demands. The RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 5 of 24 respondents were got issued and served a legal notice dated 07.02.2007, sent through registered AD and UPC, which was duly received on 08.02.2007. The copy of the legal notice has been placed on record as Ex.PW1/3, its postal receipt as PW1/4, UPC as Ex.PW1/5 and AD card as Ex.PW1/6. PW1 further stated that after receipt of the said legal notice, the respondent sent an account payee cheque bearing no. 138088 dated 06.03.2007 drawn on Bank of India, Greater Kailash Branch, for Rs.4625/. Since, the said cheque did not represent the entire arrears of rent and interest, the petitioner did not encash the same. PW1 further stated that earlier a suit titled as Harvansh Kumari Ors. vs. M/s Vinay Saigal Vijay Saigal, was decreed in favour of the petitioner vide judgment and decree dated 27.07.2006 and placed on record the certified copies of the same as Ex.PW1/7, PW1/8, PW1/9 & PW1/10. PW1 tendered the documents during his examinationin chief on oath.
10. In the crossexamination, PW1 stated that petitioners are the landlord of the premises since the year 1963 and he is employee of all the petitioners since 1959. PW1 stated that prior to him, Sh. Jishan Lal Goel was the Manager Estate, who has now expired. In the cross examination, a suggestion was merely given that the legal notice Ex.PW1/3 was never received by the respondents. It also came in the crossexamination that M/s Vinay Saigal Vijay Saigal are the tenants for the last 40 years. The witness admitted that Smt. Harvansh RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 6 of 24 Kumari, Joginder Lal Kuthiala and Sh. Jatinder Lal Kuthiala, had filed an eviction petition against Sh. J.P. Saigal, however, the witness did not know if the said petition was filed in respect of the premises in dispute nor did he know the outcome of the said petition. PW1 denied the suggestion that Vinay Saigal, Vijay Saigal and Raju Saigal are the tenants in the premises in dispute. He further denied that the premises in dispute was let out to Sh. J.P. Saigal near about 1950.
11. RW1 Vinay Saigal filed the affidavit Ex.RW1/A and stated that premises bearing No. B50 was initially let out to Sh. J.P. Saigal in the year 1950 by the previous owners. Late Sh. J.P. Saigal thereafter became the tenant of the petitioners and their predecessor ininterest on purchase of the property from the previous owners. Late Sh. J.P. Saigal remained in possession till the date of his death i.e. 30.04.1987. Sh. J.P. Saigal died leaving behind Vinay Saigal, Vijay Saigal and Raju Saigal and all of them became the tenants in the premises in dispute. It was stated that Smt. Harvansh Kumari, Sh. Joginder Lal Kuthiala and Sh. Jitender Lal Kuthiala, had filed an eviction petition against Sh. J.P. Saigal in respect of the premises in dispute, which was compromised between the parties on 24.05.1977. The certified copy of the application dated 16.05.1977 has been placed on record as Ex.RW1/1 in the said appeal. The statements of the parties were recorded. The certified copies of the statement of Sh. H.K.L. Sabharwal, Ld. Advocate and the order dated 24.05.1977 have RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 7 of 24 been placed on record as Ex.RW1/2 & RW1/3. The respondent also placed on record the original rent receipts issued by Sh. Jishan Lal Goel, as Ex.RW1/4 to RW1/7 in favour of Sh. J.P. Saigal. The respondent denied to have received the demand notice dated 07.02.2007 Ex.PW1/3, however, submitted that legally recoverable rent for 37 months was tendered vide cheque of Rs.4625/.
12. In the crossexamination, RW1 has stated that after the death of their father, all the three brothers run the business from the premises jointly and have established a private limited company. The RW1 in the crossexamination admitted to have filed the WS Ex.PW1/A in the previous suit and also admitted to have signed and verified by him and his brothers. RW1 stated that contents of the same to the effect that the defendant firm is a partnership firm and is a tenant, are incorrect. The respondent stated that no amendment application was made in the said suit regarding the fact of the partnership firm, however, he stated that after the written statement was filed, they asked their lawyer as to how those wrong facts have been mentioned. The witness has voluntarily stated that their lawyer has informed them that it did not make difference in the injunction suit.
13. In the further crossexamination, RW1 stated that he had sent the cheque dated 06.03.2007 drawn on Bank of India, GK Branch, for Rs.4625/ at his own. The witness has voluntarily stated that he RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 8 of 24 had not received any notice. The witness further stated that he did not know that interest @15% is payable for the delayed period in payment of rent. The witness also denied the suggestion that he had sent the cheque under the legal advice. Respondent admitted in the cross examination that no rent receipt was ever issued by the petitioner in the joint name of the three brothers after the death of their father in 1987.
14. Sh. Raju Saigal, also filed his affidavit as Ex.RW2/A. In the affidavit, he also reiterated that the premises bearing No. B50 was initially let out to Sh. J.P. Saigal in or about 1950 by the previous owners and after the death of Sh. J.P. Saigal on 30.04.1987, all three brothers became the tenants of the premises. RW2 also deposed on the lines of Sh. Vinay Saigal/RW1.
15. In the crossexamination, RW2 stated that he did not receive any notice of demand from the petitioner. He also stated that his brother had paid the rent to the landlord and he did not know the details of the rent paid by his brother. RW2 admitted that they received the dak at the address B5051, Connaught Place, New Delhi and also admitted that address on Ex.PW1/3 is correct.
16. RW3 Mr. R.K. Saini is the witness of Registrar of Companies and exclusively relating to petition filed under Section 14(1)(b)(c)&(j) of DRC Act and has not been discussed herein.
17. The Ld. Trial Court vide impugned order dated 29.01.2015 RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 9 of 24 dismissed the eviction petition no. 93/09 filed under Section 14(1)(b)
(c)&(j) of DRC Act.
18. In regard to the eviction petition bearing No. 18/09 filed under Section 14(1)(a) of DRC Act, the Ld. Trial Court taking into account the admission of the respondent in earlier suit bearing No. 636/95, inter alia held that respondent no.1 is the tenant in the premises in dispute, however, Ld. Trial Court further proceeded to hold that as per respondent no.1, the premises was let out to Sh. J.P. Saigal and all the three sons have inherited the tenancy rights after the death of their father. Sh. Vinay Saigal & Sh. Vijay Saigal are admittedly the partners in the partnership firm and Sh. Raju Saigal has now been impleaded as a party in the present petition and as such, no dispute remains regarding relationship of landlord and tenant between the parties.
19. In regard to the competency of PW1 to depose in the present case, the Ld. Trial Court inter alia held that it is not necessary that the petitioner himself to enter witness box to prove his case and the petitioner can examine any other person who is conversant with the facts of the case. The Ld. Trial Court held the PW1 to be a competent witness.
20. In regard to demand notice, the Ld. Trial Court dealt with the objection taken by the respondent that notice is bad in law as the same has not been issued by all the petitioners. The Ld. Trial Court RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 10 of 24 inter alia held that objection was never taken by the respondent in their written statement. It was noted that respondent in their written statement have stated that the amount of Rs.4625/, legally recoverable rent, was remitted to the petitioners within two months on receipt of demand notice and therefore, there is no cause of action to file the present petition. It was also noted that respondent simply denied about the averments made in the petition regarding service of demand notice. Rather, the respondent categorically stated that notice of the demand was duly complied with within two months. The Ld. Trial Court thus, held that there is no denial of the fact that demand notice dated 07.02.2007 was served upon respondent. The Ld. Trial Court held that the notice was sent on the correct address and the same was admitted by RW1&2 in their crossexamination. It was further held that no crossexamination was done regarding the validity of the notice. The Ld. Trial court also noted that though, the respondent tendered the arrears for the period of three years prior to the date of notice of demand, however, it did not include the interest for late payment and therefore, the tender was not for the whole of the arrears of rent legally recoverable. The Ld. Trial Court held that interest forms part of the arrears of legally recoverable rent. It was concluded that respondent despite service of the demand notice have not tendered the interest of legally recoverable rent despite the same being specifically demanded and thus, held liable for eviction under Section 14(1)(a) of DRC Act.
RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 11 of 24
21. Subsequently, vide order dated 27.02.2015, the benefit under Section 14(2) of DRC Act was granted to the respondent.
22. The appellants/tenants assailed the impugned orders and filed appeals under Section 38 of the DRC Act. The appellants have filed two separate appeals challenging the impugned order. In appeal bearing RCT No. 118/16, the appellants have challenged the impugned order dated 29.01.2015, vide which the petition under Section 14(1)(a) of DRC Act, was allowed. By way of appeal bearing RCT No. 128/2016, the appellants have challenged the order dated 27.02.2015 of the Ld. Trial Court, vide which benefit under Section 14(2) of DRC Act, was granted to the respondents/tenants
23. The appellants in appeal have challenged the impugned order on the ground that the Ld. Trial Court erred in holding that the respondent no.1 / M/s Vinay Saigal Vijay Saigal admitted the tenancy in respect of the tenanted premises in the suit but has denied the same in the petition or that the respondent no.1 had not placed any document to refute the said submission. The Ld. Trial Court failed to appreciate that the judgment reported as AIR 1967 Punjab 328, is not applicable to the present case. The Ld. Trial Court failed to appreciate that no firm by the name of respondent no.1 in the petition was ever in existence or that there is no dispute of relationship of landlord and tenant between the parties. The Ld. Trial failed to appreciate that the premises in dispute were initially let out to Sh. J.P. Saigal and that RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 12 of 24 after his death, his tenancy rights were inherited by his three sons i.e Vinay Saigal, Vijay Saigal and Raju Saigal. The Ld. Trial Court erred in holding that interest forms part of the arrears of legally recoverable rent. The Ld. Trial Court failed to appreciate that the alleged notice of demand was sent by only two of the petitioners, whereas, admittedly all the three petitioners in the petition were the landlords and as such, there was no requirement to take any objection regarding the validity of the said notice. The Ld. Trial Court failed to appreciate that the alleged notice of demand was not legal and valid as the same was not sent or addressed to the tenants.
24. It has further been stated that the application under Order 18 Rule 17 CPC has wrongly been dismissed by the Ld. Trial Court vide order dated 03.09.2014 and during the course of this appeal, this court may also look and decide about the legality of the appeal. The service of the demand notice has also been refuted by the appellants.
25. Notice of the appeal was issued to the respondents and Trial Court Record was called.
26. The respondents have not filed their reply, however, they have opposed the appeals.
27. Sh. Sanjay Aggarwal, Ld. Counsel for the appellants/tenants submitted that there was no relationship of landlord and tenant as the respondent no.1 in the petition was not the tenant. The premises were let out to Sh. J.P. Saigal and after his death, his RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 13 of 24 three sons namely Vinay Saigal, Vijay Saigal and Raju Saigal became the tenants by inheritance. It has never been the case of the petitioners that after the letting out of the premises in dispute to Sh. J.P. Saigal, there has ever been a change of tenancy. It has further been submitted that PW1 Sh. Bihari Lal Walia had admitted in his crossexamination that Sh. J.P. Saigal was a tenant in respect of the premises in dispute and he remained as tenant till his death and after his death, his tenancy rights were inherited by his sons. Ld. Counsel further argued that the petitioners have not appeared as witnesses in the eviction petitions filed by them. The Ld. Trial Court ought to have taken adverse inference for their nonappearance. The Ld. Trial Court has failed to appreciate that the tenants have never admitted the service of the demand notice dated 07.02.2007. Even otherwise, the said notice was invalid in law and no petition under Section 14(1)(a) of DRC Act could have been filed on the basis of said notice. It is the admitted fact that the petitioners are the landlords qua the premises in dispute, however, the said notice was served only on behalf of petitioner nos.1&2 and not on behalf of petitioner no.3. The reliance has been placed on Sardarmal Panna Lal vs. Shree 1008 Shri Chandra Prabhoo Jinalaya Trusty, Sironj 1979 MPLJ 266.
28. Ld. Counsel for the appellants/tenants has also relied upon the following judgments in support of his case :
i) T.M. Mohana vs. Kanna AIR 1984 Madras 14;
RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 14 of 24
ii) Javer Chand Ors. vs. Pukhraj Surana (1962) 2 SCR 333;
iii) Ranajit Kanungo vs. Ibcon Pvt. Ltd. AIR 1982 Karnataka 219
29. Ld. Counsel for the appellants/tenants also filed the detailed written submission.
30. Sh. Bharat Deepak, Ld. Counsel for the respondents/landlords has submitted that respondent had neither paid nor tendered the rent for the last about 17 years along with interest within two months in spite of service of demand notice dated 07.02.2007, which was duly received by them on 08.02.2007. Ld. Counsel submitted that after receipt of the notice, the respondent sent the amount vide two separate cheques dated 06.03.2007, but the same were not encashed as it was not complete and valid legally recoverable rent. Ld. Counsel further submitted that in the written statement, the respondent admitted that along with the rent, they had not tendered the interest accrued thereon. Ld. Counsel submitted that it has repeatedly been held that interest is an integral part of the rent and the same had to be paid along with the arrears of rent and relied upon the following judgments :
i) Prof. Ram Prakash vs. D.N. Srivastava 126(2006) DLT6;
ii) Raghbir Singh vs. Sheela Wanti 170 (2010) DLT 7 and RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 15 of 24
iii) Puneet Bajaj vs. Baldev Kumar Pahwa 170 (2010) DLT 134.
31. Ld. Counsel further submitted that the appellants/tenants have wrongly and falsely claimed that notice of the demand was not served. It has been stated that name and address on the notice are correct and clear and therefore, presumption under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, can be invoked in favour of the landlord and against the tenant.
32. In regard to competency of PW1, Ld. Counsel submitted that PW1 has specifically stated that he is the Estate Manager of the petitioners/landlords and has the knowledge of the facts of the case. The SPA executed in favour of the witness has also been proved.
33. Ld. Counsel submitted that order dated 03.09.2014 of the dismissal of the application under Order 18 Rule 17 CPC was never challenged and has attained finality. It has further been submitted that appellants cannot invoke the appellate jurisdiction of this court to examine the validity of the order dated 03.09.2014.
34. Ld. Counsel for the appellants also filed detailed written submission on the record.
35. I have heard Ld. Counsel for the parties and perused the record carefully.
36. The appellants have predominantly challenged the RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 16 of 24 impugned order on the following grounds :
a) that the tenant in the present case is not a partnership firm;
b) that the premises in dispute was let out to late Sh. J.P. Saigal and after his death in 1987, all of his sons i.e. Sh. Vinay Saigal, Sh. Vijay Saigal and Sh. Raju Saigal, have became the tenants in the premises in dispute;
c) the alleged demand notice served by the landlord upon tenant is not a valid notice; and d) the interest does not form part of the rent.
37. In separate appeals filed before this court, the respondents have relied upon the rent receipts Ex.RW1/4 to RW1/7. These rent receipts are of 30.07.1977, 16.01.1978, 05.05.1982 and 21.06.1983.
All these rent receipts are purportedly being signed by Sh. Jishan Lal Goel and have been executed in favour of Sh. J.P. Saigal regarding premises B50.
38. Ld. Counsel for the appellants has further argued that proceedings in appeal bearing No. 866/68, as per memo of parties, had been filed by Smt. Harvanesh Kumari Ors vs. Sh. J.P. Sehgal and Ors. The said proceedings pertain to property bearing No. B50, Kuthiala House, New Delhi. These proceedings were compromised and Sh. H.K.L. Sabharwal, Ld. Counsel appearing for the landlords made a RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 17 of 24 statement, on which, the appeal was dismissed as withdrawn. However, the petitioners are relying upon the pleadings filed in Civil Suit bearing CS No. 636/95. The said civil suit was filed in November, 1995 by Smt. Harvansh Kumari, Sh. Joginder Lal Kuthiala and Sh. Jatinder Lal Kuthiala, against M/s Vinay Sehgal Vijay Sehgal. It was stated that the defendant M/s Vinay Sehgal Vijay Sehgal is a tenant under the plaintiffs @Rs.125/ per month. This suit was for permanent injunction. In the written statement filed by the respondents, it was admitted that defendant firm, which is a partnership firm, is a tenant under the plaintiffs. The said civil suit was decided by Sh. Rakesh Pandit, Ld. Civil Judge vide order dated 27.07.2006 Ex.PW1/10. The Ld. Civil Judge vide the said order/judgment held that it was admitted that suit property i.e. B50 was let out to the partnership firm. The certified copy of the same has duly been proved on the record.
39. It is pertinent to mention herein that in the cross examination of PW1 in eviction petition No. 17/09 and 94/09, PW1 admitted that Sh. J.P. Saigal was the tenant in respect of B50 and was inducted as tenant prior to 1947 and he remained as tenant therein till his death. PW1 also admitted that the rent receipts used to be issued to Sh. J.P. Saigal in respect of rent paid by him. Rent receipts were issued on behalf of landlord in respect of said flats by Sh. Jishan Lal Goel, their manager. It has further come in the crossexamination of RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 18 of 24 PW1 that sons of Sh. J.P. Saigal inherited the tenancy rights in respect of premises B50 after his death. Now, there is an admission on the part of petitioner's witness that late Sh. J.P. Saigal was the tenant in respect of B50 and after his death, all his three sons Sh. Vinay Saigal, Sh. Vijay Saigal and Sh. Raju Saigal, inherited the tenancy rights. However, in the civil suit bearing No. 635/1995, certified copy of the judgment has been placed on record as Ex.PW1/1, it has been admitted that firm was let out to the partnership firm.
40. I consider that the principles regarding appreciation of evidence is that evidence has to be read in totality. PW1 in his testimony has admitted that premises in dispute was let out to late Sh. J.P. Saigal and after his death, his sons inherited the tenancy rights. The rent receipts in favour of late Sh. J.P. Saigal in respect of premises B50 have also been proved on record and such rent receipts have also been admitted by PW1. I consider that in view of testimony of PW1, notwithstanding admission in earlier suit, it has been held that premises in dispute was let out to late Sh. J.P. Saigal and after his death, his sons inherited the tenancy rights. It is also pertinent to mention here that the civil court was not directly dealing with the issue/question of relationship of landlordtenant.
41. The second challenge to the impugned order is that the demand notice dated 07.02.2007 is not a valid as it has not been served by all the petitioners. In respect of his contentions, Ld. Counsel has RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 19 of 24 relied upon Sardarmal Pannalal (supra).
42. I have gone through this judgment. The said judgment is respectfully distinguished on the facts and circumstances of the case. Furthermore, this point had never been raised by the respondents in their written statement or during the crossexamination of the witness. Thus, this argument seems to be an afterthought. In the case of Sardarmal Pannalal (supra), the premises was let out to the members of managing committee of Shree 1008 Shri Chandra Prabhoo Jinalay Trusty, Sironj. However, the notice was served only by one of the five persons. The Hon'ble court has appreciated all the evidence and found that it was not established by the testimony of PW1 Motilal, who had served the notice, that he was the manager (Prabhandak) of the managing committee of the Deity. It was also noted that it had come in the evidence that the managing committee used to manage the affairs of and the property belonging to the Deity; and that he was one of the members of the managing committee. The constitution or rules regarding the working of the committee was also not placed on record. The Managing Committee had also not produced any document to show that he had written authority to serve the aforesaid notice. In these peculiar facts and circumstances, it was inter alia held that Motilal was a self styled Manager (Prabhandak) of the Managing Committee of the Deity and was neither dejure nor defacto manager thereof. It is also pertinent to mention herein that the court also RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 20 of 24 noticed that Motilal was never authorised to act as a landlord and therefore, an adverse presumption was drawn. It was held that the entire body of five persons were representing the Managing Committee has to be regarded as landlord for the purpose of section 12(1)(a) of M.P. Accommodation Control Act, 1961.
43. The facts in the present case are different. The ownership of the petitioners have not been disputed. The notice was served by two of the coowners and the petition has been filed by all the co owners.
44. This court considers that a distinction has to be drawn between joint landlords and coowners. In case of joint landlords, it may be necessary that all landlords must join in serving the notice. But, in the case of coowners, if some of the coowners serve the notice and there is nothing on record to suggest that the coowners who have not joined had not consented to the service of notice will not make the demand notice invalid.
45. The objection regarding the competency of PW1 also carries no substance as PW1 has specifically stated that he is holder / SPA and working as an Estate Manager for the last many years and has all the facts within his personal knowledge.
46. Ld. Counsel for the appellants has contended that since the complete tender of rent has been made before filing the petition, therefore, there is no cause of action to file the present petition. RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 21 of 24
47. I consider that it is no more res integra that tenant is liable to pay the interest on the accrued rent if the rent has not been paid in time.
48. In Raghbir Singh vs. Sheela Wanti 170 (2010) DLT 7, it was further inter alia held as under :
"11. I also consider that the learned RCT went wrong in observing that the tenant was not liable to pay interest as demanded by the landlord on demand notice. Section 26(1) of the DRC Act reads as under: xxxxxxx
12. This amendment was inserted by the legislature in 1988. The amendment makes it abundantly clear that the rent is to be paid month by month and where any default occurs for payment of rent, the tenant has to pay simple interest @ 15% per annum from the date of which such payment of rent became due till the date when it is paid. Thus, the legislature made it clear that in case the rent is not tendered month by month by the tenant, the tenant incurs additional legal liability of paying interest @ 15% on the amount due for the delayed period. This additional liability has become part of the rent. A landlord can recover from the tenant only legally recoverable arrears rent and the landlord has no liberty to recover beyond what has already been agreed upon between the parties or the market rent. Where the rent is not paid by month to month, the interest over the rent, as levied by the statute, becomes part of the legally recoverable rent and it cannot be said that unless there is an amendment in Section 14(1)(a) or Section 15, the provisions of Section 26 would not apply. The rent due would mean that the rent RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 22 of 24 due as per law and where the law specifically provides that if rent is not paid for the month when it is due, it has to be paid with interest of 15% per annum, then the rent due would include the rent plus the interest over it. The tenant in this case had been tendering rent with a gap of six month or nine month or so and had not been tendering rent month by month. The tenant had to tender rent along with accrued interest of 15% per annum to the landlord in view of the statutory provisions of DRC Act. In the case in hand, the landlord had specifically demanded interest of 15% over the delayed rent from the tenant vide notice of demand and once this notice is made, non tendering of rent with interest, tantamount to non fulfillment of obligation under Section 14(1)(a) of DRC Act. I consider that the tender made by the tenant was not in accordance with law and was not a valid tender."
49. It is now a settled proposition that interest over the arrears is a part of the rent and tender must be made of the complete rent.
50. I find no force in the arguments of the Ld. Counsel for the appellants.
51. In the appeal, the appellants have also challenged the order passed by the Ld. Trial Court on the application under Order 18 Rule 17 CPC dated 03.09.2014, however, it is a matter of record that the said order was not challenged within the stipulated period. This court considers that challenging the order dated 03.09.2014 passed on the application under Order 18 Rule 17 CPC along with the present appeal RCT Nos. 118/16 & 128/16 Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 23 of 24 has no substance.
52. The aforesaid appeals bearing RCT Nos. 118/16 & 128/18 are therefore, dismissed accordingly.
53. TCR be sent back along with copy of the judgment.
54. Appeal file be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2021.09.18
SHARMA 18:14:16 +0530
Announced in the (DINESH KUMAR SHARMA)
open court on Principal District & Sessions Judge/RCT
th
18 day of September, 2021 Patiala House Courts, New Delhi
RCT Nos. 118/16 & 128/16
Vinay Saigal Ors vs. Joginder Lal Kuthiala Ors. Page No. 24 of 24