Delhi District Court
{Durga Prasad Lohia vs . Avinash Bhasin (E-154/08)} on 31 May, 2013
{Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)}
IN THE COURT OF SH. SIDHARTH MATHUR,
ARC-02 (CENTRAL), TIS HAZARI COURTS, DELHI
E-154/08
Unique Identification No. 02401C1219592008
Sh. Durga Prasad Lohia
S/o Late Sh. Nainsukh Dass Lohia,
R/o 129-D, Kamla Nagar,
Delhi-110007. ........... Petitioner
Through
Sh. Sandip Jindal,
Advocate.
Versus
Sh. Avinash Bhasin,
S/o Late Sh. Roshan Lal Bhasin,
C/o D-129, Kamla Nagar,
Delhi-110007.
IInd Address :-
AC 160-A, Shalimar Bagh,
Delhi-110088.
IIIrd Address :-
AC 160-B, Shalimar Bagh,
Delhi-110088. ........... Respondent
Through
In Person.
JUDGMENT
1. Under Section : 14 (1) (a) DRCA.
2. Date of institution : 19.09.2008.
3. Date of Final Order : 31.05.2013.
4. Final Order : Petition Allowed.
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{Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)}
BRIEF FACTS
A) Petition
1. The petitioner is the co-owner of property no. D-129, Kamla Nagar, Delhi-7 via sale deed dated 13.02.1964 Ex. PW1/1 (hereinafter "suit property").
2. Roshan Lal Bhasin, the father of the respondent was initially inducted as a tenant for commercial purposes in one room on the backside of the suit property, which has been shown in red in the site plan Ex. PW1/2 (hereinafter "tenanted premises"). After his death, the respondent was inducted as a tenant which he continues to be till date.
3. The monthly rent of the tenanted premises was Rs. 25/- exclusive of all other charges. The respondent was in arrears of rent since 1970 whereby he was served with the legal notice dated 21.01.2008 Ex. PW1/3 (via postal and UPC receipts Ex. PW1/4 to PW1/7) demanding the arrears from 01.01.2005 till 31.12.2007 along with interest @ 15% p.a. thereupon. Via the same notice, the petitioner also simultaneously enhanced the monthly rent from Rs. 25/- to Rs. 27.50/- w.e.f. 01.03.2008. The respondent though replied to the same via reply dated 05.02.2008 Ex. PW1/8 but did not clear his arrears.
4. Subsequent to the said legal notice Ex. PW1/3, the respondent instead filed the DR petition no. 145/08 Ex. RW1/4 U/s 27 DRCA for depositing the rent demanded therein. Despite filing the said petition, he neither paid nor deposited the statutory interest @ 15% p.a. as was demanded by the petitioner.
5. The respondent thereafter once again committed default in the payment of his rent whereby the petitioner issued another legal notice dated 02.07.2008 Ex. PW1/R3 (via postal and UPC receipts Ex. PW1/10 to PW1/13) demanding the arrears of rent for 01.01.2008 till 29.02.2008 @ Rs. 25/- p.m. and for 01.03.2008 till 30.06.2008 @ Rs. 27.50/- p.m. The respondent though replied to the same via reply dated 03.08.2008 Ex. PW1/R4 but did not comply the same.
Hence the present petition U/s 14(1)(a) DRCA came into being on 19.09.2008.
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B) Written Statement
6. The respondent was served with the notice of this petition whereafter he filed his WS on 06.01.2009.
7. In the preliminary objections, the respondent has disputed the ownership of the petitioner.
On merits, the respondent has admitted that his father earlier was a tenant since 1955 having been so inducted by Karta Ram, the Muneem/ Attorney of petitioner's grandfather Budh Ram Lohia. He further stated that after the death of his father, all his legal heirs including the respondent became the joint tenants. Thus an objection has been taken by him that this petition is bad for the non joinder of the remaining joint tenants/ legal heirs of his deceased father since it has has been filed only against him.
8. The respondent has admitted the factum of initial monthly rate of rent being Rs. 25/-, which was subsequently enhanced to Rs. 27.50/- w.e.f. 01.03.2008.
9. The respondent has alleged that the nature of the tenancy has always been residential cum commercial by disputing the assertion of the petitioner that it was only commercial. However he has admitted that the tenanted premises is presently being used for commercial purposes only.
10. The respondent has also disputed the extent of the tenancy by alleging that initially it also comprised of a common latrine and bathroom apart from the room in question. He has contended that user of the said common latrine and bathroom was deprived from his father by the petitioner, who thereafter converted them into his store room. Thus he alleges that the present petition is not maintainable in the present form having been filed for his partial eviction only from the room in question.
11. The respondent has alleged that the suit property was attached in 1971 by the Income Tax Authority, Hissar and all its tenants were served with the notice of the attachment of their respective rents whereafter the said tenants deposited their respective rents with the said Income Tax Authority. He has also alleged that the suit property continues to be under the said attachment whereby the petitioner has no locus standi to ! (Page No. 3 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} maintain this petition. Likewise he has further asserted that the petition is bad for non joinder of the said Income Tax Authority.
12. The respondent has admitted the receipt of both the legal notices Ex. PW1/3 and Ex. PW1/R3, which were respectively replied by him via replies Ex. PW1/8 and Ex. PW1/R4. However he denies his liability to pay any arrear of rent or interest thereupon. He has alleged that neither his father, nor he had ever defaulted in paying the rents, which were regularly tendered and paid to the petitioner.
He has alleged that he acting for himself and the remaining legal heirs had personally tendered the demanded rent to the petitioner pursuant to the first legal notice Ex. PW1/3 which was refused. These arrears were once again tendered to the petitioner within the stipulated period of two months via money order dated 05.02.2008 Ex. RW1/2, which was likewise refused by the petitioner on dated 15.02.2008 via report Ex. RW1/3. Hence as a last resort, these arrears were resultantly deposited in the Court U/s 27 DRCA via DR petition no. 145/08 Ex. RW1/4.
As regards the second legal notice Ex. PW1/R3, the respondent has claimed that the arrears demanded therein were personally tendered to the petitioner by him on behalf of himself and the remaining legal heirs, but, he refused to accept those. Hence these arrears were again tendered to the petitioner within the stipulated period of two months via money order dated 13.08.2008 Ex. RW1/8, which was likewise refused on 28.08.2008 via report Ex. RW1/9 (the report was to the effect that "petitioner not met").
The respondent has thus alleged that both the said legal notices were duly complied by him whereby no liability regarding the arrears of rent or any interest thereupon can be fastened against him via the present petition.
C) Replication
13. In this replication, the petitioner has admitted that the suit property once was attached by the Income Tax Authority, Hissar. He has however clarified that the said attachment has since ended whereby the suit property is free from all encumbrances.
He has also admitted the factum of the DR petition no. 145/08 Ex. RW1/4 filed by the respondent. He has further claimed that the legal notices Ex. PW1/3 and Ex. PW1/R3 were never properly complied by the respondent since he neither paid, nor tendered the statutory interest claimed therein.
! (Page No. 4 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} In the remaining replication, the petitioner has merely reiterated the contents of his petition by denying the contrary assertions of the respondent.
ORDER U/s 15(1) DRCA
14. After the completion of the pleadings, the parties were heard U/s 15 (1) DRCA whereafter the respondent was directed via order dated 08.03.2010 to deposit/pay arrears of monthly rent @ Rs. 25/- w.e.f. from 01.01.2008 till the passing of the order within one month of the said order. By virtue of the very same order, the respondent was further directed to continue depositing/paying monthly rent @ Rs. 25/- till the disposal of this petition. Thereafter the trial was started.
TRIAL A) Petitioner's Evidence
15. In his evidence, the petitioner examined himself as PW1 by filing his examination in chief via affidavit Ex PW1/A wherein he has merely reiterated the contents of his petition, which have already been discussed under the heading of "brief facts".
In his cross examination on behalf of the defence, the petitioner deposed the following relevant facts :-
a) That his grandfather Budh Ram was the owner of the suit property in 1964 ;
b) That he has two other brothers namely Radhey Shyam and Raghu Nandan ;
c) That the respondent's father was inducted as a tenant around 50 years back ;
d) That the tenancy was created by him and not by Karta Ram, the alleged Attorney of his grandfather Budh Ram ;
e) That the rent receipt dated 03.09.1955 Ex. PW1/R1 was issued in favour of the respondent's father ;
f) That he had filed objections on dated 02.08.2008 against the DR petition no. 145/08 Ex.RW1/4 ;
g) That money order of Rs. 160/- (Ex. RW1/8) was never tendered
to him, nor it was ever refused by him ; and
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{Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)}
h) That the remaining legal heirs of the deceased father of the
respondent have not been made as a parties herein as they are not in occupation of the tenanted premises.
On the conclusion of this cross examination, the PE was closed on 28.05.2010.
B) Respondent's Evidence
16. The respondent in his evidence had examined 03 witnesses.
He examined himself as RW-1 by filing his examination in chief via affidavit Ex. RW1/1. Apart from reiterating the contents of his WS, he had deposed certain additional relevant facts in his examination in chief. He had deposed that his father never received any attachment notice from Income Tax Authority, Hissar and hence continued to pay rent to Karta Ram (the Attorney of the petitioner's grandfather) even after the attachment of the suit property by the said Authority. He had also deposed that the monthly rent was sometimes used to be collected by the petitioner and sometimes by his remaining two brothers namely Raghunandan Lohia and Radhey Shyam Lohia. He had also deposed that regular rent receipts uptill 1971 were issued in favour of his father but thereafter they were never issued though the rent was regularly paid. He had also deposed that after the death of his father on 09.03.2001, he had been regularly paying rent to the petitioner uptill November 2007 on behalf of himself and the remaining joint tenants/LRs but no rent receipts are being issued. He had also deposed that he had personally tendered rent to the petitioner w.e.f. December 2007 who did not receive the same.
17. In the cross examination on behalf of the petitioner, the respondent deposed the following relevant facts :-
a) That the petitioner's grandfather Budh Ram was the owner of the suit property ;
b) That the tenancy also comprised of the common latrine and bathroom apart from the room in question, which were initially used by his father with the remaining tenants but the user of the same was subsequently closed by the landlord ;
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{Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)}
c) That his father had filed a petition U/s 45 DRCA after being
denied of the user of the said latrine and bathroom by his landlord ;
d) That he does not know if the said petition U/s 45 DRCA was dismissed by the High Court or as to what was its fate ;
e) That he has not filed his separate site plan ;
f) That the rent was sometimes collected by the petitioner and
sometimes by his remaining two brothers from his father during his lifetime and thereafter from his legal heirs including him ;
g) That neither any legal notice was given, nor any petition was ever filed against the landlords for the non issuance of the rent receipts since the relations between them and his father were always cordial ;
h) That the rent uptill November 2007 stood paid by the LRs of his deceased father ;
i) That the current rate of rent is Rs. 27.50/- p.m ;
j) That the rent w.e.f. 01.01.2005 up till 31.12.2007 as demanded
in the first legal notice Ex. PW1/3 was deposited U/s 27 DRCA via DR petition Ex. RW1/4 ;
k) That the second notice Ex. PW1/R3 was replied by him via reply Ex. PW1/14 and was also complied by him within the statutory period ; and
l) That the interest demanded via legal notice Ex. PW1/R3 was neither tendered via money order Ex. RW1/8, nor was paid since the LRs of his deceased father never withheld the relevant arrears of rent.
18. RW-2 Dharam Dutt was the postman from Post Office Malkaganj. This witness has deposed that the second money order Ex. RW1/8 dated 13.08.2008 was assigned to him for delivery to the petitioner whereafter he had visited the address of the petitioner on six occasions but the petitioner was never found available and hence he gave his report Ex. RW1/9.
This witness was thereafter cross examined on behalf of the petitioner wherein he deposed that he gave the intimation regarding the said money order to the family members of the petitioner. He has also deposed that the said intimation was given to one Sh. Arjun.
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19. RW-3 Hira Lal Sharma was also the postman from Post Office Malkaganj. This witness has deposed that the first money order Ex. RW1/2 dated 05.02.2008 was assigned to him for delivery to the petitioner whereafter he had visited the address of the petitioner who refused to receive the same and hence he gave his report Ex. RW1/3.
This witness was thereafter cross examined on behalf of the petitioner.
20. After the examination of the aforesaid witnesses, the RE was closed on 06.09.2001 thereby concluding the trial. The final arguments were then heard on 01.05.2013.
FINDINGS A) Relationship of Landlord & Tenant
21. The petitioner has proved the sale deed dated 13.02.1964 Ex. PW1/1 whereby he along with his remaining two brothers Radhey Shyam and Raghunandan had purchased the suit property comprising the tenanted premises from the MCD. The factum and legality of this sale deed has not been challenged by the respondent which consequently establishes that the petitioner is the co-owner of the tenanted premises.
Hence the preliminary objection of the respondent challenging the ownership of the petitioner loses its steam.
22. Admittedly the father of the respondent was initially the tenant, who has since expired.
The petitioner has claimed that the respondent solely was substituted as a tenant in place of his deceased father to the exclusion of the remaining LRs.
On the other hand, the respondent claims that he along with the remaining LRs succeeded to the tenancy of his father after his death.
Except for the bald assertions that the respondent was solely substituted as the tenant in place of his deceased father, the petitioner produced no cogent evidence either in form of the exclusive rent receipts allegedly issued in favour of the respondent or any other documentary evidence to establish this plea. Thus he has failed to prove that the respondent was substituted as the sole tenant on the death of his father to the exclusion of the remaining LRs.
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23. Now when it is admitted between the parties that the father of the respondent initially was the tenant who has now expired, the respondent along with the remaining LRs succeeded to the said tenancy as one of the joint tenant via the operation of law. It is pertinent to refer the judgment of the Supreme Court delivered in "H.C. Pandey vs. G.C. Paul" AIR 1989 SC 1470 at this stage wherein it was categorically held that the heirs of the deceased tenant succeeds to his tenancy as joint tenants and not as co-tenants. The relevant portion is reproduced as under :-
"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under s. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed. "
Similar observations were reiterated by the Delhi High Court in "Rahul Sachdeva & Anr. Vs. Kishore Kumar Sharma & Ors." decided on 08.08.2008 in CM (M) 849/2008. The relevant portion is reproduced as under :-
" 6. No doubt on death of a tenant, the legal heirs inherit the tenancy rights. However, they inherit the tenancy rights only as joint tenants and not as a co-tenants. In joint tenancy, two or more tenants take identical interest simultaneously with the other tenants. A joint tenancy differs from the tenancy in common. It is not the claim of the petitioner that he was a tenant in his own right. He claimed tenancy after demise of his father as a legal heir. It is settled law that after death of the original tenant, the tenancy rights devolve upon the legal heirs of the deceased tenant as joint tenants. The incidence of tenancy are the same as those enjoyed by the original tenant and if one of the legal heir is not made as a party, the other legal heirs who are joint tenants represent the tenancy. This Court in 1990(3) Delhi Lawyer 163 Mohd. Usman vs. Surayya Begum has observed as under: "In the light of the above observations of the Supreme Court ! (Page No. 9 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} there can be no doubt that even if one of the legal heirs is not a party to proceedings for eviction filed by the landlord against the legal heirs of the original tenant, that heir who has been left out cannot later on come forward and agitate his or her right in the tenancy."
24. The respondent in his pleading as well as the evidence has repeatedly admitted that after the death of his father, he acting for himself and the remaining LRs had sometimes paid rent to the petitioner and sometimes to his remaining brothers. Meaning thereby the respondent has acceded to the landlordship of the petitioner by paying him rent after the death of his father. Thus this circumstance further strengthens the existence of relationship of landlord and tenant between the petitioner and the LRs of the deceased tenant.
25. Moreover when it is already established that the petitioner is one of the co-owners and the respondent has stepped into the shoes of his deceased father/tenant, the petitioner automatically becomes one of his joint landlord.
Hence the existence of the relationship of landlord and tenant between the parties stands proved.
26. The respondent has taken an objection that the petition having being filed only against him is bad for non joinder of the remaining LRs. Likewise he has also contended that the demand notices Ex. PW1/3 and Ex. PW1/R3 are invalid having been issued only against him and not the remaining LRs. In this regard, he has relied upon the judgements of "Ganga Pershad Vs. Tribeni Delhi" 1975 RLR 547 (Delhi) & "Smt. Shafiqa & Ors. Vs. Maksood Ahmad Khan & Ors." 1970 RCR 99 (Allahabad) wherein it was held that the heirs of a deceased tenant succeeds as co-tenants and not joint tenants whereby each one of them is entitled to a separate notice of termination of tenancy and in its absence, the eviction petition is not maintainable.
The aforesaid twin objections taken regarding the validity of the said demand notices and the maintainability of the present petition falls in the teeth of the judgment of the Supreme Court delivered in the case of " H.C. Pandey's Case" (Supra) and judgment of the Delhi High Court delivered in "Rahul Sachdeva's Case" (Supra). As already been discussed herein above, both these citations categorically declared that the heirs of the deceased tenant succeeds to the tenancy as joint tenants and not co-tenants whereby service of the notice of ejectment on one of the joint tenants, who acted on behalf of the others, is sufficient. In "Rahul Sachdeva's Case" (Supra), it was further held by the Delhi ! (Page No. 10 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} High Court that eviction petition filed against one of such joint tenants without impleading remaining LRs is maintainable.
In the light of the aforesaid precedents and the admitted fact that the respondent is one of the joint tenants who had been paying rent while acting for himself and for the remaining LRs, the aforesaid objections taken by the respondent fails to garner any strength. On the same reasoning, the citations of "Ganga Pershad's Case" (Supra) & "Smt. Shafiqa's Case" (Supra) relied by the respondent are distinguishable in the facts of this case.
27. Next it is disputed between the parties as to who had created this tenancy.
The petitioner has alleged that he had inducted the respondent as a tenant. On the other hand, the respondent has alleged that his father was initially inducted as a tenant in 1955 by the Karta Ram, the attorney of the petitioner's grandfather Budh Ram.
Once it is proved that that the respondent's father during his lifetime was merely a tenant and that the respondent along with other LRs has succeeded to this tenancy, the questions pertaining to the aspect as to who had created this tenancy becomes totally irrelevant.
B) Rate of Rent
28. The initial rate of monthly rent being Rs. 25/- is admitted between the parties. The respondent has admitted to the service of the legal notice Ex. PW1/3 whereby the monthly rent was enhanced to Rs. 27.50/- w.e.f. 01.03.2008. He has also not disputed or objected the aforesaid enhancement. Rather he has admitted the factum of the said enhancement and having acting upon it.
Hence it is proved that the initial rate of monthly rent was Rs. 25/-, which was enhanced to Rs. 27.50/- w.e.f. 01.03.2008 via legal notice Ex. PW1/3.
C) Extent of the Tenancy
29. The petitioner has claimed that the tenanted premises only comprised of one backside room as shown in red in the site plan Ex. PW1/2.
The respondent on the contrary claims that the tenancy also comprised of the common latrine and bathroom apart from the said room. He has also alleged that the said latrine and bathroom were used by his father & the remaining tenants, but, thereafter his ! (Page No. 11 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} father was deprived of their user by the petitioner who instead converted the same into his store room. He has also claimed that his father had filed a petition U/s 45 DRCA with regard to the said deprivation.
Except for raising bald allegations, the respondent produced no cogent evidence to establish his plea that the tenancy also comprised of any such latrine and bathroom apart from the room in question. Likewise he produced no documentary evidence substantiating the fact that his father had ever filed any petition U/s 45 DRCA claiming therein that his tenancy included that latrine and bathroom or that he had been deprived of their user. Admittedly the respondent did not file his own site plan countering the petitioner's site plan Ex. PW1/2 wherein the tenanted premises has been depicted as comprising of only the room in question.
Thus the respondent has failed to establish that the tenancy also included any common latrine or bathroom other than the room in question whereby his objection that the present petition is not maintainable having been filed for his partial eviction only from the room in question also fails.
D) Nature of the Tenancy
30. The parties have disputed the nature of the tenancy. The petitioner claims the same to be purely commercial while the respondent claims it to be residential cum commercial.
No observations are warrented on the aspect of the nature of the tenancy since the same is totally irrelevant as regards the present adjudication.
E) Service of the Legal Notice
31. The service of both the legal notices Ex. PW1/3 and Ex. PW1/R3 is admitted between the parties. Likewise it is admitted that the said legal notices were respectively replied by the respondent via replies Ex. PW1/8 and PW1/R4.
F) Compliance of the Legal Notice & the Liability of the Respondent
32. The first legal notice Ex. PW1/3 dated 21.01.2008 was given by the petitioner for demanding his arrears from 01.01.2005 till 31.12.2007. The second legal notice Ex. PW1/ R3 dated 02.07.2008 was given by the petitioner for demanding his arrears from ! (Page No. 12 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} 01.03.2008 till 30.06.2008. The second legal notice Ex. PW1/R3 immediately preceded the filing of the present petition whereby the petition is deemed to be based on this legal notice only. Moreover the counsel for the petitioner during the course of the final arguments had also conceded that the present petition is founded upon the non- compliance of the second legal notice Ex. PW1/R3 only. Thus the factum of the compliance or the non-compliance of the first legal notice Ex. PW1/3 becomes totally irrelevant qua the present case.
Henceforth I shall only be concentrating on the aspect as to whether the respondent had any liability qua the second legal notice Ex. PW1/R3 and if yes, whether he had duly complied the same.
33. Now that the petition having been based upon the second legal notice Ex. PW1/R3, the relevant period for determining the culpability of the respondent U/s 14(1)(a) DRCA would be from 01.01.2008 till 30.06.2008 for which period the arrears of rent and the statutory interest @ 15% p.a. thereupon were demanded by the petitioner.
The respondent has alleged that he had never withheld any rent from the petitioner, which instead was regularly tendered to the petitioner, who avoided receiving the same. He has also alleged that the arrears demanded via legal notice Ex. PW1/R3 were tendered to the petitioner within the stipulated period of two months via money order dated 13.08.2008 Ex. RW1/8 but he deliberately avoided receiving the same as per report Ex. RW1/9. On the strength of these assertions, he is denying having any liability U/s 14(1)(a) DRCA.
The respondent admittedly was served with the legal notice Ex. PW1/R3 wherein the petitioner had demanded the arrears of rent to the tune of Rs. 160/- for the period w.e.f. 01.01.2008 till 30.06.2008 along with statutory interest @ 15% p.a. thereupon. The said legal notice was admittedly replied by the respondent via reply dated 03.08.2009 Ex. PW1/ R4. It has been proved that pursuant to this reply, the respondent even dispatched the money order Ex. RW1/8 on dated 13.01.2008 for a sum of Rs. 187.50/- towards the rents from 01.01.2008 till 31.07.2008. The said money order was returned to the respondent with the report Ex. RW1/9 that "the petitioner did not met despite numerous visits". RW-2 Dharam Dutt proved the said report by deposing that he had visited the address of the petitioner on six occasions but he was not found whereafter he gave his report Ex. RW1/9 after intimating his family member named Arjun. The petitioner has not disputed the correctness of his address to which the said money order was dispatched, which is the same as the one mentioned in his petition. Thus the record proves that the said money ! (Page No. 13 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} order was dispatched to the petitioner at his correct address within two months of the legal notice but it could not be delivered because of his unavailability.
34. Admittedly the respondent never tendered the statutory interest demanded in the legal notice Ex. PW1/R3 either through the said money order or otherwise. Hence the question which now arises is that whether the said tender can be said to be complete or not.
The petitioner has alleged that the tender of the arrears via the money order Ex. RW1/8 was incomplete since the respondent did not tender the demanded statutory interest along with the arrears.
Per Contra, the respondent has denied his liability to pay or tender any such interest by asserting that the rent were never withheld from the petitioner which were rather regularly tendered to him who instead avoided to receive it. The respondent in his evidence has deposed that the rents w.e.f. December 2007 were regularly tendered to the petitioner, who did not receive the same. No cogent evidence was adduced by the respondent to substantiate this oral deposition that the rent was regularly paid or tendered w.e.f. December 2007. The respondent though had alleged that the rent receipts were never issued by the landlords but this assertion falls in the teeth of his admissions that neither any legal notice was given by him, nor any legal proceedings were instituted by him against the landlord for demanding the said receipts. These omissions on part of the respondent to take up appropriate legal actions for demanding his rent receipts let go off important pieces of evidence which could have helped him in proving that he had been paying his rents regularly. Thus mere bald assertions are not suffice to give rise to the presumption that the rents w.e.f. December 2007 were regularly tendered to the petitioner.
35. Assuming for the sake of arguments that the said rents were regularly tendered as claimed by the respondent and were not accepted by the petitioner, the respondent in the given situation instead of doing nothing ought to have either sent those rents for the months of January to June 2008 on regular monthly basis once they became due via respective money orders or should have deposited those before the Court U/s 27 DRCA within 21 days of they respectively becoming due. However neither of the same was done by the respondent so as to timely discharge his liability to pay the rents accruing on monthly basis w.e.f. January 2008 till June 2008. It appears from the record that the said rents for the first time were offered by the respondent on dated 13.08.2008 via money order Ex. RW1/8 pursuant to the receipt of the legal notice Ex. PW1/R3. Moreover via the ! (Page No. 14 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} said money order, the respondent had also offered the rent for the month of July 2008 though it was not demanded by the petitioner in his legal notice. Since the rents for January 2008 till June 2008 were neither paid, nor tendered on monthly basis once they became due, the respondent incurred the liability to pay statutory interest @ 15% p.a. qua every such default by virtue of Section 26 DRCA.
36. Admittedly no interest regarding the aforesaid delayed monthly rents was ever tendered or paid by the respondent at any given point of time. The respondent also did not tender such interest via his money order Ex. RW1/8 wherein he instead preferred to tender the additional rent for July 2008 though it was never demanded by the petitioner in his legal notice. This court on its own can not apportion or adjust the additional rent of July 2008 towards the interest demanded in the legal notice PW1/R4 in absence of any contract to this effect between the parties or without the petitioner himself apportioning the same towards the said interest.
It is well settled that if the monthly rents are not paid once they became due, then the tenant is liable to pay statutory interest thereupon as per Section 26 DRCA, which consequently becomes part of the legally recoverably rent (Refer :- "Prof. Ram Prakash Vs. D. N. Srivastava", 126 (2006) DLT 6).
In the given circumstances, once the demanded interest was not tendered or paid by the respondent either by money order Ex. RW1/8 or otherwise within two months of the legal notice Ex. PW1/R3, the said tender was incomplete. Now that the said tendering via the money order Ex. RW1/8 was incomplete, the respondent cannot draw any benefit from the fact that the petitioner had avoided to receive the same as per report Ex. RW1/9. The petitioner was within his legal rights to avoid and even refuse the said money order once the arrears tendered therein were incomplete. Pursuant to the avoidance of the said money order by the petitioner, the respondent despite being a practicing lawyer also did not deposit the arrears of rent for January 2008 to June 2008 along with the interest accruing thereupon by filing any petition U/s 27 DRCA within the stipulated period of two months.
In this scenario the liability of the respondent to pay the arrears and the statutory interest claimed via legal notice PW1/R3 subsisted till the filing of this petition inspite of his dispatch of the money order Ex. RW1/8. It is a separate matter that the respondent during the present proceedings was directed to deposit the arrears of rent w.e.f. January 2008 U/ s 15(1) DRCA (sans the statutory interest which was the subject matter of the trial).
! (Page No. 15 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} Thus it stands proved that the legal notice Ex. PW1/R3 was not duly complied within two months of its service.
G) Remaining Objections of the Respondent
37. The respondent has claimed that the suit property was attached in 1971 by the Income Tax Authority, Hissar, whereby all the tenants were asked via attachment notices to deposit their respective rents with the said authority. He has also claimed that the suit property remained under the said attachment whereby neither the petitioner has the locus standi to maintain this petition, nor it is maintainable due to the non joinder of the said authority.
The petitioner has controverted the aforesaid allegations by asserting that the said attachment had already culminated whereby the suit property was free from all encumbrances on the date of the issuance of the legal notice Ex. PW1/R3 and on the date of the filing of the present petition.
The onus to prove that the aforesaid assertions regarding the locus standi of the petitioner and the maintainability of the petition was upon the respondent. Though it is admitted between the parties that the suit property was once attached by the aforesaid authority but once the petitioner had alleged that the said attachment had culminated long back, it was the duty of the respondent to show that the said attachment existed even on the date of the issuance of the legal notice Ex. PW1/R3 and on the date of the filing of the petition. The respondent led no evidence whatsoever except for his bald allegations to establish any of these facts. Rather in his examination in chief, he has admitted that his father never received any attachment notice from the said authority whereby he continued to pay rent to his landlord even thereafter.
Since the respondent has failed to establish that the suit property remained under the said attachment when the legal notice Ex. PW1/R3 was issued or when the petition was filed, the petitioner was fully competent to maintain this petition being one of the co- owners. Likewise the said authority was not the necessary party in absence of the said attachment being proved whereby the petition cannot be said to be bad for its non joinder.
Hence the aforesaid objections of the respondent are over ruled.
38. The respondent has relied upon the judgment of the Supreme Court titled as "Smt Prakash Mehra vs. K.L. Malhotra" 1989 (17) DRJ 28 to content that the arrears of rent ! (Page No. 16 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} envisaged under the law are the arrears demanded by the notice and since he had tendered the arrears demanded via legal notice Ex. PW1/R3, the said notice stood satisfied.
As already been discussed herein above that the petitioner in the said legal notice apart from demanding arrears of rent had also demanded the statutory interest accruing thereupon. It is fairly well settled that the statutory interest on its accrual become part of the legally recoverable rent. Admittedly the respondent had only sought to tender the arrears of rent via money order Ex. RW1/8 without tendering the statutory interest whereby the said tender was incomplete. The respondent by withholding the said statutory interest did not pay the complete arrears demanded via the said legal notice. Thus the respondent cannot draw any benefit from the aforesaid precedent, which is hence distinguishable on the facts of this case.
CONCLUSION
39. For the reasons assigned herein above, I am of the view that the petitioner has proved his case whereby the respondent is held to be a defaulter within the meaning of section 14(1)(a), DRCA as he did not pay or completely tender the arrears of rent & statutory interest claimed in the legal notice Ex. PW1/R4 within two months of its service.
40. As per the order passed U/s 15 (1) DRCA, the respondent was directed to pay the arrears of rent w.e.f. 01.01.2008 @ Rs. 25 p.m. By means of the said order, he was not directed to pay any interest qua the arrears of rent w.e.f. 01.01.2008 till 30.06.2008. The rate of monthly rent has already been opined to be Rs. 25/- for the months of January 2008 & February 2008, which was later enhanced to Rs. 27.50/- w.e.f. 01.03.2008.
Hence the respondent is directed to pay or deposit the difference of monthly rent to the tune of Rs. 02.50/- p.m. for the period starting from March 2008 till date within six weeks from today.
The respondent is further directed to pay or deposit the said statutory interest @ 15% p.a. regarding the arrears of rent calculated @ Rs. 25 p.m. for the months of January 2008 & February 2008 within six weeks from today.
Likewise the respondent is also directed to pay or deposit the said statutory interest @ 15% p.a. regarding the arrears of rent calculated @ Rs. 27.50 p.m. for the months of March 2008 till June 2008 within six weeks from today.
! (Page No. 17 of 18) {Durga Prasad Lohia Vs. Avinash Bhasin (E-154/08)} The order U/s 15(1) DRCA was passed on 08.03.2010 wherein no interest was ordered to be paid by the respondent on the subsequent arrears w.e.f. July 2008 till February 2010. Hence the respondent is directed to pay or deposit the statutory interest @ 15% p.a. regarding the arrears of rent calculated @ Rs. 27.50 p.m. for the months of July 2008 till February 2010 within six weeks from today.
Announced in the Open Court (Sidharth Mathur) on 31.05.2012 ARC -02(Central)/Delhi. ! (Page No. 18 of 18)